Maria Flores v. John Ashcroft , 354 F.3d 727 ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-4073
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Maria Flores, *
*
Appellant, *
*
v. * Upon Transfer from the
* United States District Court
John Ashcroft, Attorney General of the * for the District of Kansas.
United States; Michael Heston, *
Director of the Immigration and *
Naturalization Service, Kansas City, *
Missouri, *
*
Appellees. *
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Submitted: September 9, 2003
Filed: December 31, 2003
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Before SMITH, LAY, and BRIGHT, Circuit Judges.
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SMITH, Circuit Judge.
Maria del Rosario Flores attempted to enter the United States without valid
entry documents and was removed pursuant to an expedited removal procedure that
does not afford a hearing. She reentered illegally and applied for an adjustment-of-
status. When she arrived for her adjustment interview, she was arrested. The
Immigration and Naturalization Service ("INS") reinstated the prior removal order,
pursuant to another expedited procedure that does not afford a hearing. She sought
review of the reinstatement, arguing that (1) her detention and removal without the
opportunity for a hearing violated due process; (2) her initial exclusion at the
border–without being served with a charging document–violated due process; and (3)
that she had the right to have her adjustment-of-status application adjudicated prior
to her removal. We deny the petition.
I. Background
Flores, a native and citizen of Mexico, was excluded from entering the United
States at the Mexico border by an immigration officer because she had no valid entry
documents in her possession and because she initially misrepresented herself as a
United States citizen. See 8 U.S.C. § 1225(b)(1)(A) (2000) (authorizing an INS
officer to remove arriving aliens without providing the aliens a hearing before an
immigration judge). Following this attempted illegal entry, Flores was notified that
she was prohibited from entering the United States for five years from the date of her
October 14, 1998, exclusion. However, one week after her removal, Flores reentered
the United States. She later married David Flores, a United States citizen.
On May 30, 2001, Flores's husband submitted a petition on her behalf,
requesting that she be granted status as a lawful, permanent resident. In her
adjustment application, Flores stated that she had never been deported or removed
from the United States. In November of 2001, Flores had an interview with the INS,
prompted by her adjustment-of-status application. During the interview, the INS
agent discovered that Flores was subject to an order of removal. The INS ordered the
prior removal order reinstated under 8 U.S.C. § 1231(a)(5) (2000), which provides:
If the Attorney General finds that an alien has reentered the United
States illegally after having been removed or having departed
voluntarily, under an order of removal, the prior order of removal is
reinstated from its original date and is not subject to being reopened or
reviewed, the alien is not eligible and may not apply for any relief under
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this chapter, and the alien shall be removed under the prior order at any
time after the reentry.
The implementing regulation states in relevant part:
An alien who illegally reenters the United States after having been
removed, or having departed voluntarily, while under an order of
exclusion, deportation, or removal shall be removed from the United
States by reinstating the prior order. The alien has no right to a hearing
before an immigration judge in such circumstances.
8 C.F.R. § 241.8(a) (2001). Flores filed a petition for habeas corpus in the district
court. Because a decision to reinstate a prior removal order is actually the
enforcement of a prior final order, we have exclusive jurisdiction to review the
removal decision. 8 U.S.C. § 1252(a) (2000); Brionies-Sanchez v. INS, 319 F.3d 324,
326 (8th Cir. 2003).
II. Discussion
Flores argues that her detention and removal without the opportunity for a
hearing amounts to a deprivation of her rights under the Due Process Clause.1 We
consider constitutional claims under a de novo standard of review. Escudero-Corona
v. I.N.S., 244 F.3d 608, 614 (8th Cir. 2001). Flores's arguments are largely foreclosed
by existing precedent in our circuit. To the extent we have not yet reached the issue,
we conclude that the reasoning of other circuits is persuasive, thereby foreclosing her
remaining claims.
1
Flores also argues that her initial exclusion violated the Due Process Clause
because she was not served with a charging document. However, the reinstatement
statute, as interpreted by our court, bars review of that order either directly or
collaterally. 8 U.S.C. § 1231(a)(5); Brionies-Sanchez, 319 F.3d at 327–28 (rejecting
challenge to reinstatement statute's preclusion of review of prior order).
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Flores's claim involves two discrete removal procedures. Flores was first
removed under 8 U.S.C. § 1225(b)(1)(A), which provides for the expedited
removal–without a hearing–of an alien who is deemed to be inadmissible upon
attempted entry, due to misrepresentation. The second provides for the reinstatement
of a prior removal order–without a hearing–if the alien later is found in the United
States after reentering illegally. 8 U.S.C. § 1231(a)(5). The INS removed Flores under
§ 1225(b)(1)(A) and now seeks to reinstate that removal under § 1231(a)(5).
Accepting Flores's initial removal order as valid, we turn to the question of
whether due process requires a hearing upon reinstatement of that order. The Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") revised
the reinstatement provision, former 8 U.S.C. § 1252(f), to its current form, codified
at 8 U.S.C. § 1231(a)(5). Before the enactment of IIRIRA, aliens subject to
reinstatement had a right to a hearing before an immigration judge. 8 C.F.R. § 242.23(repealed 1997). However, the current regulation denies those aliens such a hearing.
8 C.F.R. § 241.8(a).
The revised regulations expand the types of orders that can be reinstated and
provide that an alien is subject to automatic reinstatement of a prior removal order
upon a determination that (1) the alien has been subject to a prior deportation order,
(2) the alien is correctly identified as an alien who was removed under a prior order,
and (3) the alien unlawfully reentered the United States after her removal. 8 C.F.R.
§ 241.8(a). Section 1231(a)(5) expressly provides that an alien who meets these
criteria "is not eligible" for other relief. Flores acknowledges that (1) she is an alien,
(2) who was previously removed, and (3) who reentered the United States illegally.
In order to obtain relief for a violation of procedural due-process rights in
immigration proceedings, an alien must show that the violation prejudiced her. Lopez
v. Heinauer, 332 F.3d 507, 513 (8th Cir. 2003). Because Flores does not challenge
any of the three relevant determinations concerning the validity of a reinstatement
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order, there is no doubt that Flores's deportation order would have been reinstated,
and she would be statutorily ineligible for any relief even if she had been granted a
new hearing before an immigration judge. Accordingly, we need not address whether
the INS's procedures for imposing reinstatement orders offends due process.
Notwithstanding the statutory bar to eligibility for relief in the reinstatement
provision, Flores argues that she is eligible for adjustment-of-status pursuant to 8
U.S.C. § 1255(i), which provides that a qualifying relative "may apply to the Attorney
General for the adjustment of his or her status to that of an alien lawfully admitted for
permanent residence." Further, "[t]he Attorney General may accept such application
only if the alien remits with such application a sum equaling $1,000.00 as of the date
of the receipt of the application . . . ." 8 U.S.C. § 1255(i).
Although we agree that Flores fully complied with these procedures, she is still
ineligible for relief for two reasons. First, the bar to relief in the reinstatement
provision of 8 U.S.C. § 1231(a)(5) controls. See Padilla v. Ashcroft, 334 F.3d 921,
925 (9th Cir. 2003). In 2000, Congress expressly excluded certain classes of aliens
from the bar of § 1231(a)(5). The amendments revised § 202 of the Nicaraguan
Adjustment and Central American Relief Act and § 902(a) of the Haitian Refugee
Immigration Fairness Act of 1998 to exempt aliens described in those acts who apply
for adjustment-of-status from reinstatement pursuant to § 1231(a)(5). Thus, as stated
by the Ninth Circuit, "when Congress intended to exempt certain groups of aliens
from the sweep of the reinstatement statute, it knew how to do so." Id. Flores's
situation–an alien that has filed an adjustment-of-status application prior to the
reinstatement of a removal order–does not fall within one of the classes that Congress
elected to exclude.
Further, we have stated that previously-removed aliens who illegally reentered
the United States after IIRIRA's effective date–like Flores–are ineligible for
"discretionary relief such as an adjustment[-]of[-]status." Alvarez-Portillo v. Ashcroft,
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280 F.3d 858, 866–67 (8th Cir. 2002); see also Padilla, 334 F.3d at 925 (holding that
the bar to relief in the reinstatement provision controls adjustment-of-status); Gomez-
Chavez v. Perryman, 308 F.3d 796, 802 (7th Cir. 2002) (finding adjustment-of-status
application does not affect alien's removability under reinstatement statute); Espinal
v. Pere, 144 F. Supp. 2d 53, 55 (D.P.R. 2001) (noting that one of the requirements for
adjustment-of-status under § 245(i) of the INA is that the alien have "no prior orders
of removal").
Second, Flores is not eligible for adjustment-of-status relief–even if she were
not subject to reinstatement. Flores's application was denied on the separate ground
of her failure to establish her admissibility to the United States for permanent
residence. Specifically, the INS found that Flores was not "the beneficiary of an
approved Form I-212, Application for Permission to Reapply for Admission Into the
United States After Deportation or Removal," and therefore was not currently
admissible to the United States.
PETITION DENIED.
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