Ernest Odei v. DHS ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-3105
ERNEST A. ODEI and
SPIRIT OF GRACE OUTREACH,
Plaintiffs-Appellants,
v.
UNITED STATES DEPARTMENT OF
HOMELAND SECURITY, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 17-cv-06019 — Andrea R. Wood, Judge.
____________________
ARGUED APRIL 12, 2019 — DECIDED SEPTEMBER 10, 2019
____________________
Before FLAUM, EASTERBROOK, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Ernest Odei traveled from his native
Ghana to the United States in 2017 to meet with academic
advisors and to perform missionary work. When he arrived
in Chicago, border patrol agents barred his entry because he
did not have the proper visa. After a short detention, immi-
gration authorities gave Odei the option to withdraw his
2 No. 18-3105
application for admission and return to Ghana. He chose to
do so, but several months later he brought this lawsuit
challenging the inadmissibility determination.
The district court dismissed the case for lack of jurisdic-
tion under 8 U.S.C. § 1252(a)(2)(A), which bars judicial
review of any “order of removal pursuant to” the expedited
removal procedure in 8 U.S.C. § 1225(b)(1)(A)(i). Odei argues
that the jurisdictional bar does not apply because it refers
only to “order[s] of removal” and there was no order of
removal here because he withdrew his application for
admission. Under the relevant statutory definitions, howev-
er, an “order of removal” refers to both an order to remove as
well as an order that an alien is removable. Odei is challeng-
ing the latter, so the jurisdictional bar applies.
I. Background
Odei is a pastor of a Christian church in Ghana and a
founding board member of the Spirit of Grace Outreach, a
nonprofit religious group in the United States. He is also a
Ph.D. candidate in an online educational program sponsored
by a Christian university in Tennessee. In 2017 Spirit of
Grace invited him to visit the United States to participate in
its religious activities. Odei also planned to speak at church-
es and youth groups, perform missionary work, and meet
with his academic advisors at the university. Before his trip
Odei applied for a B-1/B-2 visa, which the U.S. Consulate in
Ghana approved.
When Odei arrived at Chicago’s O’Hare International
Airport, agents of the U.S. Customs and Border Protection
agency questioned him about his trip. They eventually
determined that his visa was invalid for his intended mis-
No. 18-3105 3
sionary and academic purposes, which meant he was inad-
missible under 8 U.S.C. § 1182(a)(7). They found him inad-
missible and canceled the visa. They did not immediately
remove him, however, because he answered “yes” when
asked if he feared returning to Ghana. They transferred him
to the custody of Immigration and Customs Enforcement,
and he was held in the McHenry County Jail. A week later
Odei dropped his asylum claim. That would normally
require immediate removal under § 1225(b)(1), but the
Department of Homeland Security gave Odei the opportuni-
ty to withdraw his application for admission and return to
Ghana immediately. He did just that.
This lawsuit came a few months later. Odei and Spirit of
Grace sued the Department of Homeland Security and
Customs and Border Protection challenging the decision not
to admit him. He raised claims under the Immigration and
Nationality Act (“INA”), the Administrative Procedure Act,
and the Religious Freedom Restoration Act. 1 The district
judge dismissed the suit based on the INA’s jurisdiction-
stripping provision. This appeal followed.
II. Discussion
We start with a brief overview of the statutory scheme.
When an immigration officer concludes that an immigrant
lacks a valid visa and thus is inadmissible under § 1182(a)(7),
1 The complaint also named Immigration and Customs Enforcement and
the McHenry County Sheriff as defendants, alleging that Odei was
denied access to a Bible during his detention and that no one told him of
his rights under the Vienna Convention to contact consular officials and
have the Ghanaian consulate notified of his detention. Finally, the
complaint alleged violations of the Freedom of Information Act. These
claims were either dropped or dismissed and are no longer at issue.
4 No. 18-3105
the officer “shall order the alien removed from the United
States without further hearing or review.” § 1225(b)(1)(A)(i).
This is commonly called “expedited removal,” but there are
two exceptions. The officer may not order immediate re-
moval if “the alien indicates either an intention to apply for
asylum … or a fear of persecution.” Id. And the officer need
not order removal if the alien withdraws his application:
“An alien applying for admission may, in the discretion of
the Attorney General and at any time, be permitted to
withdraw the application for admission and depart immedi-
ately from the United States.” 8 U.S.C. § 1225(a)(4). Because
Odei initially claimed that he feared persecution but then
withdrew his application for admission and left the country
voluntarily, there was no expedited removal.
As relevant here, the INA provides that “no court shall
have jurisdiction to review … any individual determination
or to entertain any other cause or claim arising from or
relating to the implementation or operation of an order of
removal pursuant to section 1225(b)(1).” § 1252(a)(2)(A)(i);
see also Khan v. Holder, 608 F.3d 325, 329–30 (7th Cir. 2010)
(explaining the operation of the jurisdictional bar). Odei
argues that there was no “order of removal” because he
withdrew his application and voluntarily left the county, so
§ 1252(a)(2)(A) does not apply.
This argument misreads the INA. The term “order of re-
moval” is synonymous with the term “order of deportation.”
Mejia Galindo v. Sessions, 897 F.3d 894, 897 (7th Cir. 2018);
Guevara v. Gonzales, 472 F.3d 972, 796 (7th Cir. 2007). The
term “order of deportation” refers not only to a decision
“ordering deportation” but also to an order “concluding that
the alien is deportable.” 8 U.S.C. § 1101(a)(47)(A).
No. 18-3105 5
That means courts lack jurisdiction to review orders to
remove and also orders that an alien is removable. This case
falls in the latter category. Border patrol agents determined
that Odei was inadmissible under § 1182(a)(7) and cancelled
his visa. Under § 1225(b)(1)(A)(i), the Department of Home-
land Security was required to remove him once he dropped
his asylum claim. Though that never happened because
Odei withdrew his application for admission, the initial
determination that he was inadmissible under § 1182(a)(7)
and § 1225(b)(1)(A)(i) was nonetheless an “order of remov-
al.”
Compare Odei’s case to the circumstances at issue in
Guevara. Eusebio Guevara, a Honduran native and lawful
permanent resident, was placed in removal proceedings
based on convictions for retail theft and two counts of
fourth-degree sexual assault. Guevara, 472 F.3d at 973. An
immigration judge found him removable after classifying
the sexual-assault convictions as crimes of moral turpitude.
But the judge granted discretionary relief in the form of a
waiver of removal. Id. The Board of Immigration Appeals
reversed the latter determination and ordered Guevara
removed. Id. Guevara argued that the Board cannot issue a
removal order in the first instance, and because the immigra-
tion judge had granted a waiver, there was no removal
order. Id. at 975–76. We disagreed, explaining that “if an
[immigration judge] decides that an alien is removable but
does not ultimately order removal due to a grant of a waiv-
er, cancellation, or the like, the decision that the alien is
removable is nonetheless an ‘order of deportation’” that can
be given effect by the Board if it reverses the judge’s decision
regarding discretionary relief. Id. at 976.
6 No. 18-3105
Odei’s case is similar. Indeed, it involves application of a
parallel provision of the same statute: Odei was found
inadmissible under § 1182(a)(7) while Guevara was found
inadmissible under § 1182(a)(2).
Odei argues in the alternative that the jurisdiction-
stripping provision should have no effect when an alien
challenges the admissibility decision under the Religious
Freedom Restoration Act. He first notes that the Act has its
own right of action. See 42 U.S.C. § 2000bb-1(c) (“A person
whose religious exercise has been burdened in violation of
this section may assert that violation as a claim or defense in
a judicial proceeding … .”). He then points to 42 U.S.C.
§ 2000bb-3, which says that all federal statutory law is
subject to the Act “unless such law explicitly excludes such
application by reference to this chapter.” He emphasizes that
the INA’s jurisdiction-stripping provision never specifically
refers to the Religious Freedom Restoration Act—though we
note that it does expressly say that it applies
“[n]otwithstanding any other provision of law (statutory or
nonstatutory).” § 1252(a)(2)(A).
Nothing in the Religious Freedom Restoration Act over-
rides § 1252(a)(2)(A)’s jurisdictional bar. The mere existence
of a private right of action under a federal statute does not
eliminate jurisdictional obstacles. See Harris County v.
MERSCORP Inc., 791 F.3d 545, 552 (5th Cir. 2015)
(“[P]laintiffs must demonstrate both that a federal court will
have jurisdiction over their claim, and also that they (the
plaintiffs) have a right of action to initiate that claim. In other
words, establishing the court’s jurisdiction and the litigants’
right of action are two requirements that must be satisfied
independently.”) (emphasis added); see also FDIC v. Meyer,
No. 18-3105 7
510 U.S. 471, 484 (1994) (explaining that the questions of
sovereign immunity and the existence of a right of action are
“analytically distinct”); Nat'l R.R. Passenger Corp. v. Nat'l
Ass'n of R.R. Passengers, 414 U.S. 453, 456 (1974) (same, with
standing). Whether or not the inadmissibility order bur-
dened Odei’s religious practice, § 1252(a)(2)(A) precludes
judicial review all the same.
We’ve explained that under § 1252(a)(2)(A) “a court has
jurisdiction to inquire only ‘whether such an order in fact
was issued and whether it relates to the petitioner. There
shall be no review of whether the alien is actually inadmissi-
ble or entitled to any relief from removal.’” Khan, 608 F.3d at
330 (quoting 8 U.S.C. § 1252(e)(5)). In other words, in decid-
ing whether § 1252(a)(2)(A)’s jurisdictional bar applies, the
specific nature of a claimant’s statutory challenge simply
doesn’t matter. To the contrary, the jurisdictional bar is
designed to preclude courts from examining those specifics
in the first place. This case was properly dismissed. 2
AFFIRMED
2 The Ninth Circuit has held that a related review-preclusion clause in
8 U.S.C. § 1252(e)(2) is an unconstitutional suspension of the writ of
habeas corpus. Thuraissigiam v. U.S. Dep’t of Homeland Sec., 917 F.3d 1097,
1119 (9th Cir. 2019). The Solicitor General filed a petition for certiorari.
Our case does not involve habeas corpus, so we do not need to address
Thuraissigiam.