HEVER MENDOZA LINARES V. MERRICK GARLAND ( 2022 )

FILED
OCT 24 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HEVER ALBERTO MENDOZA- No. 20-71582
LINARES,
Agency No.
Petitioner, A213-209-821
v.
OPINION
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of an
Immigration Judge
Argued and Submitted December 7, 2021
San Francisco, California
Before: Susan P. Graber and Daniel P. Collins, Circuit
Judges, and Jennifer Choe-Groves, * Judge.
Opinion by Judge Collins;
Dissent by Judge Graber
*
The Honorable Jennifer Choe-Groves, Judge for the United States
Court of International Trade, sitting by designation.
SUMMARY **
Immigration
Dismissing Hever Alberto Mendoza-Linares’s petition
for review from a decision of an immigration judge
affirming an asylum officer’s negative credible fear
determination in expedited removal proceedings, the panel
held that because Congress has clearly and unambiguously
precluded the court from asserting jurisdiction over the
merits of individual expedited removal orders, even with
regard to constitutional challenges to such orders, and
because that prohibition on jurisdiction raises no
constitutional difficulty, the court lacked jurisdiction over
Mendoza-Linares’s petition for review.
Mendoza Linares entered the United States without
inspection and was immediately detained by Officers from
the Department of Homeland Security (“DHS”). Two days
later, pursuant to 8 U.S.C. § 1225, DHS issued an expedited
removal order against him. After Mendoza-Linares asserted
a fear of persecution, an asylum officer conducted a credible
fear interview and concluded that Mendoza-Linares had not
shown a reasonable fear of future persecution on account of
a protected ground. An IJ upheld that determination,
rejecting Mendoza-Linares’s asylum claim solely because of
the then-operative interim regulation, 8 C.F.R. §
208.13(c)(4) (2020)—the so-called “Transit Bar,” which
provided that, subject to certain enumerated exceptions, an
alien (such as Mendoza-Linares) who arrived in the U.S.
across the southern border “after transiting through at least
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
one country outside the alien’s country of citizenship,
nationality, or last lawful habitual residence en route to the
United States” was categorically ineligible for asylum.
By limiting the availability of asylum, the Transit Bar
effectively increased the standard of proof that an alien must
satisfy to avoid expedited removal. An alien subject to the
Transit Bar may still avoid expedited removal by
establishing a reasonable fear of persecution or torture for
purposes of withholding of removal and protection under the
Convention Against Torture. The “reasonable fear” of
persecution screening standard used to determine, in
expedited removal proceedings, whether further
consideration of withholding of removal is warranted is the
same standard required to establish a “well-founded fear of
persecution” in the ordinary asylum context. However,
pursuant to 8 U.S.C. § 1225(b)(1)(B)(v), an alien in
expedited removal proceedings, but not subject to the Transit
Bar, need only establish that there is a significant possibility,
taking into account the credibility of the statements made by
the alien in support of the alien’s claim and such other facts
as are known to the officer, that the alien could establish the
well-founded fear of persecution necessary for
asylum. Thus, the practical effect of the Transit Bar is to
raise the standard for avoiding expedited removal from (1) a
significant possibility that the alien could show a well-
founded fear of persecution to (2) a showing of a well-
founded fear of persecution. Applying the latter standard,
the IJ upheld the asylum officer’s negative reasonable fear
determination as to withholding of removal. The IJ also
found no reasonable fear of torture.
Mendoza-Linares argued that, because the asylum
officer and the IJ relied on the Transit Bar in finding that he
lacked a credible fear of persecution, he was denied, without
due process, his statutory rights under § 1225. The panel
held that it could not reach the merits of Mendoza-Linares’s
argument because it lacked subject matter jurisdiction over
the entirety of the petition under 8 U.S.C. §
1252(a)(2)(A). The panel explained that the plain text of §
1252(a)(2)(A) comprehensively bars judicial review of
matters relating to expedited removal orders, including the
merits of the credible fear determination, except as provided
in §1252(e), which provides only for very limited challenges
in an appropriate district court. The panel concluded that
none of those exceptions applied here.
The panel explained that § 1252(e) authorizes only two
limited forms of judicial review of matters concerning
expedited removal—namely, (1) a very limited form of
judicial review in habeas corpus proceedings; and (2) review
of certain challenges on the validity of the system, which
must be brought exclusively as an action instituted in the
United States District Court for the District of
Columbia. Because habeas proceedings must be instituted
in the appropriate district court and not in the first instance
in this court, and because a petition for review in this court
is distinct from a habeas corpus petition, the panel concluded
that the limited authorization of habeas corpus proceedings
did not grant this court jurisdiction over Mendoza-Linares’s
petition for review brought under § 1252(a)(1). Likewise,
the limited grant of jurisdiction to the D.C. district court did
not confer any jurisdiction on this court.
Even if Mendoza-Linares’s petition for review could
properly be characterized as invoking the limited jurisdiction
conferred on an appropriate district court under § 1252(e),
the panel concluded that it could not transfer this matter
because both the D.C. district court, and the United States
District Court for the Southern District of California, which
would have venue over a habeas corpus petition, would both
lack jurisdiction over the matter. The panel explained that
any action in the D.C. district court would not have been
timely. The panel also considered whether Mendoza-
Linares had raised a sufficient question as to whether he
“was ordered removed” under §1225(b)(1) to invoke the
exception of §1252(e)(2)(B). The panel rejected Mendoza-
Linares’s argument that because his credible fear was not
evaluated under the correct statutory standards—due to
application of the Transit Bar—the order did not constitute
an expedited removal order under §1225(b)(1). Thus,
because it was clear the agency entered an expedited
removal order under § 1225(b)(1), the panel concluded that
Mendoza-Linares had no colorable basis for invoking the
very limited habeas jurisdiction in § 1252(e)(2), and the
Southern District would lack jurisdiction over this matter.
The panel concluded that § 1252(a)(2)(D), which
restores jurisdiction over certain constitutional questions and
questions of law in removal cases, makes unambiguously
clear that §§ 1252(a)(2) and (e) bar judicial review of
constitutional challenges to expedited removal orders. The
panel further concluded that, even if the court retained
jurisdiction over “colorable constitutional claims,”
Mendoza-Linares’s petition must still be dismissed because
he had not presented any such colorable constitutional
claim. Mendoza-Linares contended under East Bay
Sanctuary Covenant v. Biden, 993 F.3d 640, 669–75 (9th
Cir. 2021), that the Transit Bar’s substantive limitations on
the granting of asylum were contrary to the immigration
statute. The panel explained that although this was a
colorable statutory argument, it did not present a colorable
constitutional claim.
Because § 1252 barred the court from asserting
jurisdiction over Mendoza-Linares’s petition for review, and
a habeas court would likewise lack jurisdiction, the panel
wrote that the only remaining question was whether, by
denying all judicial review, § 1252 was unconstitutional as
applied in this case. In view of the fact that arriving aliens
such as Mendoza-Linares lack any constitutionally protected
due process rights concerning whether they will be removed
or admitted, the panel concluded that the answer to that
question was plainly no. Further, the panel explained that
the Supreme Court in Dep’t of Homeland Sec. v.
Thuraissigiam, 140 S. Ct. 1959 (2020), expressly rejected
the alternative theory that a complete denial of judicial
review in expedited removal cases effects an
unconstitutional suspension of the writ of habeas corpus.
Dissenting, Judge Graber wrote that the majority opinion
flouts both Congressional intent and binding precedent from
the Supreme Court and this court, depriving a litigant of the
judicial review to which he is entitled with respect to his
colorable—indeed, meritorious—constitutional claim. In
Judge Graber’s view, (1) the court had jurisdiction to review
Mendoza-Linares’s colorable constitutional claim, because
no other judicial forum exists in which that claim can be
reviewed and Congress has not explicitly foreclosed the
court’s review of colorable constitutional claims; and (2)
Mendoza-Linares did not receive the process that Congress
provided because the IJ did not consider whether Mendoza-
Linares had established a significant possibility that he could
show eligibility for asylum. Accordingly, Judge Graber
would grant the petition and remand for further proceedings.
COUNSEL
Brian C. Baran (argued), Reichman Jorgensen Lehman &
Feldberg LLP, Washington, D.C.; Kate Falkenstien,
Reichman Jorgensen Lehman & Feldberg LLP, Redwood
Shores, California; for Petitioner.
Aric A. Anderson (argued), Trial Attorney; Holly M. Smith,
Assistant Director; Brian Boynton, Acting Assistant
Attorney General; Office of Immigration Litigation, Civil
Division, United States Department of Justice; for
Respondent.
MENDOZA-LINARES V. GARLAND 1
OPINION
COLLINS, Circuit Judge:
Petitioner Hever Alberto Mendoza-Linares, a citizen of
El Salvador, jumped the border fence near Tecate, California
and was immediately apprehended by U.S. authorities. He
had no previous ties to the United States and, indeed, had
never been to this country before. He was immediately
placed into expedited removal proceedings, and an asylum
officer and an immigration judge (“IJ”) concluded that he
had failed to make a sufficient showing to warrant any
further proceedings concerning his requests for asylum or
other relief. Accordingly, an expedited order of removal was
issued against him, with no possibility of appeal to the Board
of Immigration Appeals (“BIA”).
As an arriving immigrant caught at the border, Mendoza-
Linares “has no constitutional rights regarding his
application” for asylum. See Dep’t of Homeland Sec. v.
Thuraissigiam, 140 S. Ct. 1959, 1982 (2020) (citation
omitted); see also id. at 1981–82 (explicitly rejecting this
court’s holding that an arriving alien has a “constitutional
right to expedited removal proceedings that conformed to the
dictates of due process”). Taking advantage of this unique
constitutional status of arriving aliens with no ties to the
United States, Congress has chosen to explicitly bar nearly
all judicial review of expedited removal orders concerning
such aliens, including “review of constitutional claims or
questions of law.” 8 U.S.C. § 1252(a)(2)(A), (D); see also
Guerrier v. Garland, 18 F.4th 304, 311–13 (9th Cir. 2021).
Nonetheless, Mendoza-Linares has filed a petition for
review in this court, claiming that we retain jurisdiction to
decide the “colorable constitutional claim” that he contends
he has presented with respect to his expedited removal order.
But as we indicated in Guerrier, “Thuraissigiam’s
2 MENDOZA-LINARES V. GARLAND
conclusion that the Due Process Clause does not require
review of how the agency determines whether a noncitizen
subject to expedited removal is eligible for asylum precludes
this court” from asserting jurisdiction in such a case, “despite
[the alien’s] raising a colorable constitutional claim.” 18
F.4th at 312.
Because Congress has clearly and unambiguously
precluded us from asserting jurisdiction over the merits of
individual expedited removal orders, even with regard to
constitutional challenges to such orders, and because that
prohibition on jurisdiction raises no constitutional difficulty,
we conclude that we lack jurisdiction over Mendoza-
Linares’s petition. Accordingly, we dismiss his petition for
lack of jurisdiction.
I
Mendoza-Linares is a native and citizen of El Salvador.
He traveled from El Salvador by land and illegally entered
the United States by jumping over the international border
fence near Tecate, California on February 10, 2020. He was
immediately apprehended and detained by officials from the
Department of Homeland Security (“DHS”).
Section 235(b)(1) of the Immigration and Nationality
Act (“INA”) contemplates that aliens arriving in the United
States will be screened for eligibility for expedited removal. 1
1
Because title 8 of the United States Code has not been enacted as
positive law, we will generally refer to the underlying provisions of the
INA, while also supplying the corresponding citation to title 8. That is
consistent with how the IJs refer to these provisions, and it is also how
they are referenced in the regulations. The text of the INA, as amended,
is available on the website of the U.S. Government Publishing Office.
See https://www.govinfo.gov/content/pkg/COMPS-1376/pdf/COMPS-
1376.pdf.
MENDOZA-LINARES V. GARLAND 3
See 8 U.S.C. § 1225(b)(1). Accordingly, two days after
being apprehended, and while he was still in DHS custody,
Mendoza-Linares was interviewed by a Spanish-speaking
immigration officer. He admitted that he had entered the
United States illegally on February 10, without inspection
and without entry documents. He stated that he had left El
Salvador in order to be with his girlfriend, who lived in
Vista, California. Mendoza-Linares answered “No” when
asked whether he had “any fear or concern about being
returned” to El Salvador and whether he would “be harmed”
if returned there.
Based on these responses, the immigration officer
immediately made a formal written determination that
(1) Mendoza-Linares was an immigrant who at the time he
sought to enter the United States lacked a valid entry
document; and (2) as a result, he was inadmissible under
INA § 212(a)(7)(A)(i)(I). See 8 U.S.C.
§ 1182(a)(7)(A)(i)(I) (stating, inter alia, that an immigrant
who lacks a “valid entry document” at the “time of
application for admission” is “inadmissible”); see also id.§ 1225(a)(1) (providing that an alien “who arrives in the
United States” is “deemed” to be “an applicant for
admission”). And because Mendoza-Linares had expressed
no fear about being returned to El Salvador, the officer
proceeded to issue, with his supervisor’s approval, a formal
written order of removal under § 235(b)(1) on February 12,
2020. See 8 U.S.C. § 1225(b)(1)(A)(i) (stating that, upon
determining that an arriving alien is inadmissible under
§ 212(a)(7) [8 U.S.C. § 1182(a)(7)], “the officer shall order
the alien removed from the United States without further
hearing or review unless the alien indicates either an
intention to apply for asylum under [INA § 208, 8 U.S.C.
§ 1158] or a fear of persecution”); see also 8 C.F.R.
§ 235.3(b)(7) (“Any removal order entered by an examining
immigration officer pursuant to section 235(b)(1) of the Act
4 MENDOZA-LINARES V. GARLAND
must be reviewed and approved by the appropriate
supervisor before the order is considered final.”); id.§ 1235.3(b)(7) (same).
It appears, however, that Mendoza-Linares subsequently
did express fear about being returned to El Salvador,
although the record is unclear as to when and how he did so.
Instead of executing the expedited removal order, DHS on
February 21 provided Mendoza-Linares with an
“orientation” describing the “credible fear” review process
that applies when aliens, during their initial screening,
indicate fear of returning to their home country. See
8 U.S.C. § 1225(b)(1)(A)(ii) (providing that, if an alien
“indicates either an intention to apply for asylum” or “a fear
of persecution” during initial screening, then “the officer
shall refer the alien for an interview by an asylum officer
under subparagraph (B)”). Thus, although Mendoza-Linares
had not expressed fear of being returned to El Salvador
during his initial screening interview and although an order
of removal had already been entered against him, he was
nonetheless referred to an asylum officer, who on March 31,
2020 conducted a “credible fear” interview as described in
INA § 235(b)(1)(B). See 8 U.S.C. § 1225(b)(1)(B).
Under that provision, the asylum officer must conduct an
interview for the purpose of determining whether the alien
has a “credible fear of persecution,” i.e., whether “there is a
significant possibility, taking into account the credibility of
the statements made by the alien in support of the alien’s
claim and such other facts as are known to the officer, that
the alien could establish eligibility for asylum” under INA
§ 208. See 8 U.S.C. § 1225(b)(1)(B)(v). 2 Although the
2
Under INA § 208, asylum is generally available to an alien who
establishes “persecution or a well-founded fear of persecution on account
of race, religion, nationality, membership in a particular social group, or
MENDOZA-LINARES V. GARLAND 5
statutory standard speaks solely in terms of asylum, the
applicable regulations go further and direct the asylum
officer also to assess whether the alien might be eligible for
withholding of removal under § 241(b)(3) of the INA or for
relief under the Convention Against Torture. See 8 C.F.R.
§ 208.30(e)(2), (3), (5) (2020).
During his credible fear interview with an asylum
officer, Mendoza-Linares stated that he was afraid that he
would be harmed by gangs if he was returned to El Salvador.
Mendoza-Linares said that he had worked as a DJ at parties,
that some of his clients were politicians, and that at such
events the clients would require him to repeat their message
that “the government or the candidate was against the
gangs.” That, he said, led to a half-dozen incidents of
assaults by gang members, including throwing rocks or
shooting at a bus he was riding. Mendoza-Linares also
recounted two incidents in which a wall poster advertising
his DJ business was defaced with gang symbols, and he was
beaten or threatened after he erased the symbols. He
additionally told the asylum officer that, although he did not
have any gang tattoos, he was worried that his tattoos—
which consisted of a coy fish, his daughter’s name, bar codes
with his and his daughter’s birthdays, and the
comedy/tragedy “theater” faces—would be mistaken for
gang tattoos.
After the interview, the asylum officer determined on
April 1, 2020 that Mendoza-Linares did not have a credible
fear of persecution or a credible fear of torture. In
accordance with § 235(b)(1)(B)(iii)(II), the officer made a
political opinion.” 8 U.S.C. § 1101(a)(42)(A); id. § 1158(b)(1)(A)
(establishing this definition as the general standard for asylum). There
are also, however, numerous statutory bars that may preclude particular
aliens from receiving asylum. See, e.g., 8 U.S.C. § 1158(b)(2).
6 MENDOZA-LINARES V. GARLAND
written record setting forth his “analysis of why, in the light
of such facts, the alien has not established a credible fear of
persecution.” 8 U.S.C. § 1225(b)(1)(B)(iii)(II); see also
8 C.F.R. § 208.30(e)(1). Using a standard agency form (I-
870), the asylum officer determined that Mendoza-Linares
was credible, but that “[n]o fear of persecution or torture
[had been] established.”
In the narrative section of the form, the officer first
explained that Mendoza-Linares was “barred from asylum
pursuant to 8 CFR 208.13(c)(4)”; that he therefore had “not
established a significant possibility of establishing eligibility
for asylum”; and that, consequently, he “received a negative
credible fear of persecution determination.” The regulatory
reference was to the so-called “Transit Bar,” a then-
operative interim regulation at 8 C.F.R. § 208.13(c)(4)
(2020), 3 which provided that, subject to certain enumerated
exceptions, an alien (such as Mendoza-Linares) who arrived
in the U.S. across the southern border “after transiting
through at least one country outside the alien’s country of
citizenship, nationality, or last lawful habitual residence en
route to the United States” is categorically ineligible for
asylum. A companion interim regulation promulgated at the
same time provided that, if an asylum officer concluded that
an alien was subject to the Transit Bar and was therefore
ineligible for asylum, “then the asylum officer shall enter a
negative credible fear determination with respect to the
alien’s application for asylum.” 8 C.F.R. § 208.30(e)(5)(iii).
These regulations were promulgated on July 16, 2019, see
84 Fed. Reg. 33829 (2019), and after an initial injunction
against their enforcement was stayed by the Supreme Court,
they were operative on the day that the asylum officer made
the negative credible fear determination and thereafter
3
All references to regulations are to the 2020 versions that were in effect
at the time of Mendoza-Linares’s proceedings.
MENDOZA-LINARES V. GARLAND 7
continuously through the day on which Mendoza-Linares
filed his petition for review in this court. 4
The asylum officer further found that Mendoza-Linares
had failed to establish a “potential entitlement to withholding
under INA 241 or CAT [Convention Against Torture]
protection.” Under the then-applicable regulations, if an
alien is subject to the Transit Bar and therefore ineligible for
asylum, the asylum officer must nonetheless consider
whether the alien has established a “reasonable fear of
persecution or torture,” but only for purposes of determining
eligibility “for withholding of removal under section
241(b)(3) of the Act, or for withholding or deferral of
4
Shortly after the issuance of these regulations, a district court issued a
nationwide injunction against their enforcement. See East Bay
Sanctuary Covenant v. Barr, 391 F. Supp. 3d 974, 985 (N.D. Cal. 2019).
However, prior to the asylum officer’s determination in this case, the
Supreme Court stayed that injunction “in full pending disposition of the
Government’s appeal in the United States Court of Appeals for the Ninth
Circuit and disposition of the Government’s petition for a writ of
certiorari, if such writ is sought.” Barr v. East Bay Sanctuary Covenant,
140 S. Ct. 3, 3 (2019). In a separate lawsuit, another district court
enjoined enforcement of the Transit Bar against a defined subclass of
persons who had “arrived at the southern border seeking asylum before
July 16, 2019,” and a motions panel of this court denied a motion to stay
that injunction. See Al Otro Lado v. Wolf, 952 F.3d 999, 1003 (9th Cir.
2020). But because Mendoza-Linares had arrived well after July 16,
2019, the asylum officer in this case concluded that Mendoza-Linares
was not a member of the class in Al Otro Lado, and so the injunction in
that case did not apply here. Accordingly, no injunction barred
application of the regulation in Mendoza-Linares’s case at the time the
asylum officer made his determination. Twenty-two days after
Mendoza-Linares filed his petition for review in this court, a district
court subsequently vacated the regulations after holding that they had
been issued in violation of the notice-and-comment requirements of the
Administrative Procedure Act. See Capital Area Immigrants’ Rights
Coal. v. Trump, 471 F. Supp. 3d 25, 57, 60 (D.D.C. 2020), appeal
dismissed as moot sub nom. I.A. v. Garland, 2022 WL 696459, at *1
(D.C. Cir. 2022).
8 MENDOZA-LINARES V. GARLAND
removal under the Convention Against Torture.” 8 C.F.R.
§ 208.30(e)(5)(iii) (emphasis added). That “reasonable fear”
standard matches the one applied under the regulations
governing the expedited screening of aliens who, under INA
§ 241(a)(5), have had a previously executed removal order
reinstated against them and who are statutorily ineligible for
asylum. See 8 C.F.R. § 208.31(a), (c); see Alvarado-
Herrera v. Garland, 993 F.3d 1187, 1190–92, 1195 (9th Cir.
2021) (describing the “reasonable fear” screening process
applicable to aliens subject to reinstated removal orders). An
alien has a “reasonable fear” of persecution or torture if he
or she establishes “a ‘reasonable possibility’ of persecution
or torture, which has been defined to require a ten percent
chance that the non-citizen will be persecuted or tortured if
returned to his or her home country.” Alavarado-Herrera,
993 F.3d at 1195 (quoting 8 C.F.R. § 208.31(c) and citing
Bartolome v. Sessions, 904 F.3d 803, 809 (9th Cir. 2018)).
The asylum officer concluded that the requisite reasonable
possibility of persecution or torture did not exist in
Mendoza-Linares’s case.
As we have noted, this “reasonable fear screening
standard ‘is the same standard required to establish a ‘well-
founded fear’ of persecution in the asylum context.’”
Bartolome, 904 F.3d at 809 n.4 (citation omitted). The
upshot is that, in order to establish a “reasonable fear of
persecution” sufficient to warrant further consideration for
withholding of removal, an alien in expedited removal
proceedings must satisfy the same standard that is used in
evaluating substantive eligibility for asylum. The practical
effect of the Transit Bar is thus to raise the standard of proof
that an alien must satisfy to avoid expedited removal. An
alien can avoid expedited removal by showing “a significant
possibility . . . that the alien could establish eligibility for
asylum,” 8 U.S.C. § 1225(b)(1)(B)(v), and if the alien is not
subject to the Transit Bar, then that standard would be
MENDOZA-LINARES V. GARLAND 9
satisfied (assuming no other bar to asylum relief applies) if
the alien establishes a significant possibility that he or she
could show a well-founded fear of persecution. See supra
note 2. But if the Transit Bar applies, the alien must instead
show a well-founded fear of persecution (or a reasonable fear
of torture). Thus, the asylum officer here only found that
Mendoza-Linares had not shown a well-founded fear of
persecution; he did not make a finding as to whether there
was a “significant possibility” that Mendoza-Linares could
make that showing at a full-blown asylum hearing.
A supervisory official approved the asylum officer’s
determination, as required by 8 C.F.R. § 208.30(e)(8).
Because a removal order had already been issued prior to the
initiation of the credible-fear review process, the effect of
the asylum officer’s actions was to uphold and adopt that
expedited removal order.
Mendoza-Linares sought review of the asylum officer’s
negative credible fear determination by an IJ pursuant to
INA § 235(b)(1)(B)(iii)(III). See 8 U.S.C.
§ 1225(b)(1)(B)(iii)(III); see also 8 C.F.R.
§ 208.30(e)(5)(iii), (g). The IJ heard testimony on May 28,
2020 and upheld the asylum officer’s determination the same
day. Reviewing de novo, the IJ determined that Mendoza-
Linares was ineligible for asylum under the Transit Bar, and
the IJ therefore did not further consider whether he would
otherwise have been eligible for asylum. The IJ then
separately determined that Mendoza-Linares had not
“established a reasonable fear of persecution or torture that
would entitle [him] to withholding of removal or protection
under the Convention Against Torture.” In his oral ruling,
the IJ explained that he thought that the asylum officer had
erred in concluding that the past harm Mendoza-Linares
alleged did not rise to the level of persecution. Nonetheless,
the IJ concluded that Mendoza-Linares’s fear of gang
10 MENDOZA-LINARES V. GARLAND
violence lacked a connection to a protected ground and
reflected “problems that were similar to other individuals in
El Salvador.” Had the IJ found the applicable standard to
have been satisfied, the IJ would have been required to
“vacate” the expedited removal order. 8 C.F.R.
§ 1208.30(g)(2)(iv)(B). But because the IJ instead upheld
the asylum officer’s determinations, the effect of the IJ’s
order was to return the matter to DHS “for removal of the
alien,” without further administrative appeal. Id.§ 1208.30(g)(2)(iv)(A) (“The immigration judge’s decision
is final and may not be appealed.”); see also 8 U.S.C.
§ 1225(b)(1)(C) (generally barring “administrative appeal”
of IJ decisions in credible-fear review cases).
On June 8, 2020, Mendoza-Linares filed a petition for
review in this court, seeking review of the expedited removal
order and the IJ’s determination.
II
Mendoza-Linares argues that, because the asylum officer
and the IJ relied on the Transit Bar in finding that he lacked
a credible fear of persecution, he was denied, without due
process, his statutory rights under § 235 of the INA.
However, we cannot reach the merits of these issues if the
Government is correct in its threshold contention that we
lack subject matter jurisdiction to consider Mendoza-
Linares’s petition for review. “Federal courts are courts of
limited jurisdiction, possessing only that power authorized
by Constitution and statute.” Gunn v. Minton, 568 U.S. 251,
256 (2013) (citation and internal quotation marks omitted).
“There is no dispute that the Constitution permits Congress
to extend federal court jurisdiction to a case such as this one;
the question is whether Congress has done so.” Id. at 256–
57 (citations omitted). Because “a federal court always has
jurisdiction to determine its own jurisdiction,” United States
MENDOZA-LINARES V. GARLAND 11
v. Ruiz, 536 U.S. 622, 628 (2002), we have the authority to
resolve the parties’ dispute as to whether Congress has
granted us jurisdiction here. As explained below, the answer
to that question is no.
A
Under INA § 242(a)(1), we generally have jurisdiction
to review “a final order of removal.” 8 U.S.C. § 1252(a)(1);
see also id. § 1252(b)(2). However, subsection (a)(1) is
immediately followed by a further subsection—
§ 242(a)(2)—that specifies, as its caption states, certain
“[m]atters not subject to judicial review.” Id. § 1252(a)(2). 5
Section 242(a)(2), in turn, contains four subparagraphs,
designated (A)–(D). The first three subparagraphs
enumerate three specific categories of matters as to which
judicial review is limited, and the fourth subparagraph
provides a rule of construction for determining the scope of
the limitations set forth in those subparagraphs or elsewhere
in the INA. See id. § 1252(a)(2)(A)–(D). As described in
their subparagraph headings, those three categories are
(A) “Review relating to section 235(b)(1) [8 U.S.C.
§ 1225(b)(1)]”; (B) “Denials of discretionary relief”; and
(C) “Orders against criminal aliens.” Id. § 1252(a)(2)(A)–
(C). The first category, in subparagraph (A), is the one that
is relevant here. The text of subparagraph (A), together with
the text of the rule of construction in subparagraph (D), is as
follows:
5
Section 242(a)(1) also contains a parenthetical that excludes from its
grant of jurisdiction “an order of removal without a hearing pursuant to
section 235(b)(1) [8 U.S.C. § 1225(b)(1)].” 8 U.S.C. § 1252(a)(1).
Given that we conclude that, for other reasons, we plainly lack
jurisdiction over Mendoza-Linares’s petition for review, we express no
view as to whether the Government is correct in its contention that this
same result is alternatively required by that parenthetical exclusion.
12 MENDOZA-LINARES V. GARLAND
(A) Review relating to section 235(b)(1).
Notwithstanding any other provision of law
(statutory or nonstatutory), including section 2241
of title 28, United States Code, or any other habeas
corpus provision, and sections 1361 and 1651 of
such title, no court shall have jurisdiction to
review—
(i) except as provided in subsection (e),
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
235(b)(1) [8 U.S.C. § 1225(b)(1)],
(ii) except as provided in subsection (e),
a decision by the Attorney General to invoke
the provisions of such section,
(iii) the application of such section to
individual aliens, including the determination
made under section 235(b)(1)(B) [8 U.S.C.
§ 1225(b)(1)(B)], or
(iv) except as provided in subsection (e),
procedures and policies adopted by the
Attorney General to implement the
provisions of section 235(b)(1) [8 U.S.C.
§ 1225(b)(1)].
...
(D) Judicial review of certain legal claims.
Nothing in subparagraph (B) or (C), or in any
other provision of this Act (other than this section)
which limits or eliminates judicial review, shall be
construed as precluding review of constitutional
claims or questions of law raised upon a petition for
MENDOZA-LINARES V. GARLAND 13
review filed with an appropriate court of appeals in
accordance with this section.
8 U.S.C. § 1252(a)(2)(A), (D).
Because several of the prohibitions on judicial review in
§ 242(a)(2)(A) are expressly made subject to § 242(e), the
scope of jurisdiction over expedited removal orders under
§ 242 requires consideration of both (1) the limitations set
forth in § 242(a)(2)(A); and (2) the exception provided in
§ 242(e). We discuss those in turn.
B
The plain text of subparagraph (A) comprehensively bars
judicial review of matters relating to expedited removal
orders under § 235(b)(1), “except as provided in subsection
(e),” which provides only for very limited challenges in an
appropriate district court. Id. § 1252(a)(2)(A)(i), (ii), (iv);
see also Guerrier, 18 F.4th at 308 (citing Alvarado-Herrera,
993 F.3d at 1192). Subparagraph (A) accomplishes this
result by enumerating four categories of matters relating to
expedited removal orders that, taken together, cover every
aspect of the expedited removal process. Except as provided
in § 242(e), subparagraph (A)(iv) bars judicial review of any
challenge to the “procedures and policies adopted by the
Attorney General to implement the provisions of section
235(b)(1),” and subparagraph (A)(ii) bars judicial review of
“a decision by the Attorney General to invoke the provisions
of such section” in a given case. 8 U.S.C.
§ 1252(a)(2)(A)(ii), (iv) (emphasis added). 6 Once the
6
Although the various subparagraphs in § 242(a)(2)(A) refer to the
“Attorney General,” many of the relevant functions have been
transferred to DHS, and to that extent the reference to the Attorney
General would be understood as a reference to DHS. See 6 U.S.C. § 557;
see also M.M.V. v. Garland, 1 F.4th 1100, 1105 n.1 (D.C. Cir. 2021). As
14 MENDOZA-LINARES V. GARLAND
expedited removal procedure in § 235(b)(1) has been
invoked, subparagraph (A)(iii) precludes any judicial review
of “the application of such section to individual aliens,
including the [credible fear] determination made under
section 235(b)(1)(B).” Id. § 1252(a)(2)(A)(iii). Notably that
subparagraph—unlike the other three—is not subject to the
proviso “except as provided in subsection (e),” and it
therefore stands as a flat prohibition on any judicial review
of such matters. Compare id. § 1252(a)(2)(A)(i), (ii), (iv)
(including that proviso) with id. § 1252(a)(2)(A)(iii)
(omitting that proviso). Finally, subparagraph (A)(i) states
that, except as provided in § 242(e), no court has 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 235(b)(1).” Id. § 1252(a)(2)(A)(i) (emphasis
added). Accordingly, § 242(a)(2)(A)’s general prohibition
on judicial review covers the “procedures and policies” that
have been adopted to “implement” the expedited removal
process; the decision to “invoke” that process in a particular
case; the “application” of that process to a particular alien;
and the “implementation” and “operation” of any expedited
removal order. Congress could scarcely have been more
comprehensive in its articulation of the general prohibition
on judicial review of expedited removal orders. See
Guerrier, 18 F.4th at 313 (“Congress chose to strictly cabin
this court’s jurisdiction to review expedited removal
orders.”).
noted earlier, the expedited removal process involves functions
performed by both asylum officers (in DHS) and IJs (in the U.S.
Department of Justice (“DOJ”)), and it is therefore unsurprising that the
regulations implementing the Transit Bar in the context of expedited
removal orders were jointly issued by both DHS and DOJ. See 84 Fed.
Reg. at 33831–32.
MENDOZA-LINARES V. GARLAND 15
By its terms, § 242(a)(2)(A) thus prohibits us from
exercising jurisdiction over Mendoza-Linares’s petition. By
challenging the credible fear determination made in
Mendoza-Linares’s case, and the standards that were
employed by the asylum officer and the IJ in applying
section 235(b)(1) to him, Mendoza-Linares necessarily asks
us to do what the statute forbids us to do, which is to review
“the application of such section to [him].” 8 U.S.C.
§ 1252(a)(2)(A)(iii). Specifically, his claims that the Transit
Bar should not have been applied during his expedited
removal proceedings under § 235(b)(1), and that the
resulting expedited removal order is legally and factually
deficient, necessarily challenge “the application of such
section to [him], including the determination made under
section 235(b)(1)(B) [8 U.S.C. § 1225(b)(1)(B)].” Id.§ 1252(a)(2)(A)(iii); see also id. § 1225(b)(1)(B) (setting
forth the process for making and reviewing the
“determination” whether the alien has a “credible fear of
persecution”). Under the plain language of
§ 242(a)(2)(A)(iii), judicial review of such matters is barred.
As we have squarely held, “[j]udicial review of an expedited
removal order, including the merits of a credible fear
determination, is . . . expressly prohibited by
§ 1252(a)(2)(A)(iii) [INA § 242(a)(2)(A)(iii)].” Singh v.
Garland, 982 F.3d 778, 782 (9th Cir. 2020). Moreover, as
noted earlier, the exception in § 242(e) does not apply to the
prohibition on judicial review in § 242(a)(2)(A)(iii).
Because that jurisdictional bar in § 242(a)(2)(A)(iii) applies
to the entirety of Mendoza-Linares’s petition for review, we
lack jurisdiction over it. 7
7
Further, as explained in the next section, § 242(e) has no applicability
here even if it were an exception to the jurisdictional bar in
§ 242(a)(2)(A)(iii).
16 MENDOZA-LINARES V. GARLAND
C
To the extent that § 242(e) provides an exception to the
jurisdictional bars in § 242(a)(2)(A), that exception is
inapplicable here.
Mendoza-Linares’s petition for review might
conceivably have been viewed as challenging a “procedure[]
and polic[y] adopted by the Attorney General to implement
the provisions of section 235(b)(1) [8 U.S.C. § 1225(b)(1)],”
§ 1252(a)(2)(A)(iv), inasmuch as his petition might have
been thought to rest on the asserted invalidity of the
particular interim regulation requiring that a negative
credible fear determination must be made in expedited
removal proceedings whenever the Transit Bar applies. See
8 C.F.R. § 208.30(e)(5)(iii). Because the separate, more
specific prohibition of judicial review of such procedures
and policies in § 242(a)(2)(A)(iv) is subject to the exception
in § 242(e), it could then be argued that, to the extent that
Mendoza-Linares’s petition raised such a challenge, the
applicability of that exception in § 242(e) must still be
considered. See RadLAX Gateway Hotel, LLC v.
Amalgamated Bank, 566 U.S. 639, 645 (2012) (holding that,
under the canon of “statutory construction that the specific
governs the general,” a more “specific prohibition or
permission” prevails over a “general permission or
prohibition” to the extent of any conflict). However, for
multiple reasons, § 242(e) does not help Mendoza-Linares.
1
As an initial matter, § 242(e) only authorizes two limited
forms of judicial review of matters concerning expedited
removal—namely, (1) a very limited form of judicial review
in “[h]abeas corpus proceedings”; and (2) review of certain
“[c]hallenges on [the] validity of the system,” which must be
MENDOZA-LINARES V. GARLAND 17
brought exclusively as “an action instituted in the United
States District Court for the District of Columbia.” 8 U.S.C.
§ 1252(e)(2), (3) (headings). The limited authorization of
“habeas corpus proceedings” does not grant this court
jurisdiction over Mendoza-Linares’s petition for review
brought under § 242(a)(1) because habeas proceedings must
be instituted in the appropriate district court and not in the
first instance in this court, see Fed. R. App. P. 22(a), and
because a petition for review in this court under § 242(a)(1)
is distinct from a habeas corpus petition, see 8 U.S.C.
§ 1252(a)(5). And, of course, a limited grant of jurisdiction
to the D.C. district court does not confer any jurisdiction on
this court. See Singh, 982 F.3d at 783.
However, if Mendoza-Linares’s petition for review
could properly be characterized as invoking the limited
jurisdiction conferred on an appropriate district court under
§ 242(e), we would have jurisdiction and discretion to
transfer the matter to such district court. See Garcia de
Rincon v. Dep’t of Homeland Sec., 539 F.3d 1133, 1140–41
(9th Cir. 2008). But as we held in Garcia de Rincon, we may
not transfer a matter under § 242(e) if the transferee district
court would lack jurisdiction under that section. See id. at
1141. As explained in the next two sections, that is the case
here.
2
We cannot transfer the matter to the D.C. district court,
because it is clear that such court would lack jurisdiction
under § 242(e). As an initial matter, Mendoza-Linares has
failed to preserve any substantive challenge that would fall
within the limited grant of jurisdiction to the D.C. district
court. That court has jurisdiction to determine “whether . . .
a regulation . . . issued by or under the authority of the
Attorney General to implement such section [235(b)(1)] is
18 MENDOZA-LINARES V. GARLAND
not consistent” with the INA or “is otherwise in violation of
law.” 8 U.S.C. § 1252(e)(3)(A)(ii). As noted earlier, that
language arguably extends to § 208.30(e)(5)(iii), which
specifically requires a negative credible fear determination
in expedited removal proceedings when the Transit Bar
applies. But Mendoza-Linares has pointedly declined to
challenge that regulation and has instead confined his
challenge only to the underlying Transit Bar itself, which is
contained in separate regulations that govern asylum more
generally and not merely in the expedited removal process.
See 8 C.F.R. §§ 208.13(c)(4), 1208.13(c)(4). And Mendoza-
Linares did that precisely to avoid falling within
§ 242(e)(3)’s requirement that any such challenge to a
regulation implementing the expedited removal process
must be brought in the D.C. district court. As his brief
correctly explains, we held in East Bay Sanctuary Covenant
v. Biden, 993 F.3d 640 (9th Cir. 2021), that the underlying
Transit Bar regulation in 8 C.F.R. §§ 208.13(c)(4),
1208.13(c)(4) constitutes a freestanding substantive
limitation on the granting of asylum and is therefore not a
regulation that is “entirely linked” to the expedited removal
process and therefore is not within the exclusive jurisdiction
conferred on the D.C. district court under § 242(e)(3)(A).
East Bay, 993 F.3d at 666–67. Because Mendoza-Linares
has affirmatively waived any challenge to any regulation
implementing § 235(b)(1), the exception in § 242(e)
permitting challenges in the D.C. district court cannot apply
here.
Even if Mendoza-Linares’s petition had preserved such
a claim, the D.C. district court would still lack jurisdiction
for other reasons, thereby precluding us from transferring the
matter there. Any such action in the D.C. district court under
§ 242(e)(3) is subject to strict jurisdictional limitations that
Mendoza-Linares cannot satisfy. Specifically, any such
action “must be filed no later than 60 days after the date the
MENDOZA-LINARES V. GARLAND 19
challenged . . . regulation . . . is first implemented,” see 8
U.S.C. § 1252(e)(3)(B), and that “statutory time limit begins
to run” when the regulation or written policy “is ‘first
implemented,’ not when it is first applied to specific facilities
or aliens.” M.M.V., 1 F.4th at 1109 (emphasis added); see
also Singh, 993 F.3d at 783 (same). Moreover, that time
limit “is jurisdictional” and is “not subject to tolling,”
M.M.V., 1 F.4th at 1109; indeed, it does not permit late
plaintiffs to join an already existing timely action in the D.C.
district court (if there is one), see id. at 1111.
3
Nor can we transfer Mendoza-Linares’s petition to the
Southern District of California, which is the district court
that all parties agree would have had venue over a habeas
corpus petition.
The narrow habeas corpus authority granted by
§ 242(e)(2) is expressly “limited to determinations” of three
issues: (1) “whether the petitioner is an alien”; (2) “whether
the petitioner was ordered removed under such section,” i.e.,
§ 235(b)(1); and (3) “whether the petitioner can prove by a
preponderance of the evidence that the petitioner is an alien”
who has already been granted a still-valid status as a lawful
permanent resident, a refugee, or an asylee. 8 U.S.C.
§ 1252(e)(2)(A)–(C) (emphasis added); see also
Thuraissigiam, 140 S. Ct. at 1966. Mendoza-Linares
concedes that he is an alien and that he has not been granted
status as a lawful permanent resident, refugee, or asylee.
The only question the parties dispute in this regard is
whether Mendoza-Linares has raised a sufficient question as
to whether he “was ordered removed under such section”
235(b)(1) within the meaning of § 242(e)(2)(B), so as to
20 MENDOZA-LINARES V. GARLAND
warrant transfer to the Southern District of California. 8 The
answer to that question is clearly no.
Paragraph (5) of § 242(e) explicitly defines the scope of
the inquiry that is allowed by § 242(e)(2)(B)’s statement that
a habeas court has jurisdiction to determine “whether the
petitioner was ordered removed under such section”
235(b)(1). Specifically, paragraph (5) states:
In determining whether an alien has been
ordered removed under section 235(b)(1) [8 U.S.C.
§ 1225(b)(1)], the court’s inquiry shall be limited to
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
inadmissible or entitled to any relief from removal.
8 U.S.C. § 1252(e)(5). This language is fatal to Mendoza-
Linares’s argument that he may invoke the habeas
jurisdiction of the Southern District and that we should
therefore transfer the matter to that court. There is no doubt
that an order “under section 235(b)(1)” was in fact issued
here, because (1) the order that is in the record and that
Mendoza-Linares challenges expressly states that it was
entered “under section 235(b)(1)” of the INA; (2) that order
was initially issued under § 235(b)(1)(A)(i), after Mendoza-
Linares originally stated that he was not afraid to return to
El Salvador; and (3) that order was subsequently upheld and
adopted by the asylum officer under § 235(b)(1)(B)(iii)(I)
after Mendoza-Linares’s credible fear interview with the
asylum officer. See supra at 3–10. And there is no doubt
8
Mendoza-Linares initially conceded in his opening brief that INA
§ 242(e)(2) did not grant jurisdiction over the issues he raises here and
changed his position only after we requested supplemental briefing
concerning jurisdiction.
MENDOZA-LINARES V. GARLAND 21
that the order “relates to” Mendoza-Linares. Consequently,
there is no basis for invoking the habeas jurisdiction of the
Southern District and therefore no basis for a transfer to that
court.
Mendoza-Linares nonetheless contends that
§ 242(e)(2)(B) grants the Southern District jurisdiction to
consider whether, despite his removal order’s express
invocation of § 235(b)(1), that order was in substance really
an expedited removal order under § 235(b)(1). It was not,
according to Mendoza-Linares, because—due to the
application of the Transit Bar—his credible fear of
persecution was assertedly not evaluated under the correct
standards set forth in the INA. See supra at 5–10. This
argument is refuted by the second sentence of § 242(e)(5).
That sentence states that, in determining whether an order
under § 235(b)(1) was in fact issued, a habeas court lacks
jurisdiction to review “whether the alien [1] is actually
inadmissible or [2] entitled to any relief from removal.” 8
U.S.C. § 1252(e)(5). Those are the two substantive
determinations that go into the issuance of an order under
§ 235(b)(1) in any given case, see id. § 1225(b)(1)(A),
(b)(1)(B)(iii), and a habeas court is expressly barred from
reviewing whether they were correct. Further, as noted
earlier, the prohibition in § 242(a)(2)(A)(iii) on judicial
review of “the application of such section [235(b)(1)] to
individual aliens, including the [credible fear] determination
made under section 235(b)(1)(B)” is expressly not subject to
the proviso “except as provided in subsection (e),” which is
found in each of the other subparagraphs in § 242(a)(2)(A).
See supra at 13–14. It follows that the jurisdictional bar in
§ 242(a)(2)(A)(iii) also applies to the habeas jurisdiction in
§ 242(e)(2) and precludes the sort of substantive inquiry that
Mendoza-Linares seeks.
22 MENDOZA-LINARES V. GARLAND
Moreover, Mendoza-Linares’s argument fails on its own
terms. As Mendoza-Linares notes, and as we have
previously held, the Transit Bar is a general substantive rule
concerning asylum and is not a rule that implements
§ 235(b)(1). See East Bay, 993 F.3d at 666–67. The rule
was in effect at the time that the asylum officer and the IJ
acted, see supra at 6–7 & n.4, and as a substantive rule about
the availability of asylum, it was taken into account by them
in making the determination, under § 235(b)(1), whether
“there is a significant possibility” that Mendoza-Linares
“could establish eligibility for asylum” under the INA.
8 U.S.C. § 1225(b)(1)(B)(v) (defining “credible fear of
persecution”). The asylum officer and the IJ thus made a
determination, based on the Transit Bar, that there was not
the requisite “significant possibility” of eligibility for
asylum, and in light of that determination, Mendoza-
Linares’s expedited removal order was plainly issued “under
section 235(b)(1).”
Because it is clear that the agency entered an expedited
removal order under § 235(b)(1), the limitations in § 242(e)
bar judicial review of the merits of the determinations
underlying that order. Indeed, overwhelming precedent
confirms this point. See Thuraissigiam v. U.S. Dep’t of
Homeland Sec., 917 F.3d 1097, 1103–04 & n.5 (9th Cir.
2019) (rejecting the contention that § 242(e) should be
construed to allow merits review of expedited removal
orders, holding that “the plain language of the statute . . .
evidences Congress’ intent” to “strip judicial review to
‘police the boundaries’” of the expedited removal statute),
rev’d on other grounds, 140 S. Ct. at 1959; id. at 1110
(explicitly “reject[ing] the argument that § 1252(e)(2) [INA
§ 242(e)(2)] provides jurisdiction over claims of legal error”
in expedited removal proceedings); Smith v. U.S. Customs &
Border Prot., 741 F.3d 1016, 1021 n.4, 1022 (9th Cir. 2014)
(holding that the “jurisdiction-stripping” provisions of
MENDOZA-LINARES V. GARLAND 23
§ 242(e) do not permit a court to “evaluate the merits” of the
determinations underlying an expedited removal order);
United States v. Barajas-Alvarado, 655 F.3d 1077, 1082 (9th
Cir. 2011) (holding that “a court’s habeas jurisdiction” under
§ 242(e)(2) “does not extend to review of the claim that an
alien was wrongfully deprived of the administrative review
permitted under the statute and applicable regulations”);
Garcia de Rincon, 539 F.3d at 1139 (holding that § 242(e)
“expressly limit[s] the scope of [judicial] review to habeas
petitions alleging that the petitioner is not an alien or was
never subject to an expedited removal order”). As the Third
Circuit explained in Castro v. U.S. Dep’t of Homeland Sec.,
835 F.3d 422 (3d Cir. 2016), judicial review of an expedited
removal under § 242(e)(2)(B), as clarified by § 242(e)(5), is
limited to determining “whether an immigration officer
issued that piece of paper and whether the Petitioner is the
same person referred to in that order.” Id. at 431 (citation
omitted); see also Avendano-Ramirez v. Ashcroft, 365 F.3d
813, 819 n.16 (9th Cir. 2004) (stating that, under § 242(e)(5),
a habeas court applying § 242(e)(2)(B) “may only ask
whether there was a removal order and whether it relates to
the petitioner”); Shunaula v. Holder, 732 F.3d 143, 146 (2d
Cir. 2013) (holding that the “jurisdictional bar” of § 242
precludes judicial review of a claim of “illegality in the
Attorney General’s particular decision to remove” an alien
under the expedited removal statute).
Because Mendoza-Linares has no colorable basis for
invoking the very limited habeas jurisdiction in § 242(e)(2),
the Southern District would lack jurisdiction over this
matter, and a transfer to that court is not available. See
Garcia de Rincon, 539 F.3d at 1141. Because no exception
in § 242(e) applies, the jurisdiction bar in § 242(a)(2)(A)
24 MENDOZA-LINARES V. GARLAND
governs this case, and we must dismiss the petition for
review. 9
D
Mendoza-Linares nonetheless argues that, despite the
clarity and comprehensiveness of § 242’s limits on judicial
review of expedited removal orders, we must construe that
statute as not precluding judicial review of a colorable
constitutional claim. In making this argument, Mendoza-
Linares invokes the interpretive principle that “where
Congress intends to preclude judicial review of
constitutional claims[,] its intent to do so must be clear.”
Webster v. Doe, 486 U.S. 592, 603 (1988); see also Center
for Biological Diversity v. Bernhardt, 946 F.3d 553, 561 (9th
Cir. 2019). This clear statement rule rests on, and is an
application of, the canon of constitutional avoidance: “The
Webster Court noted that this heightened showing was
required to avoid the serious constitutional question that
would arise if a federal statute were construed to deny any
judicial forum for a colorable constitutional claim.” Elgin v.
Dep’t of Treasury, 567 U.S. 1, 9 (2012) (citations and
internal quotation marks omitted). Contrary to what
Mendoza-Linares contends, these canons of construction do
not require a different conclusion here.
In response to the Supreme Court’s decisions in INS v.
St. Cyr, 533 U.S. 289 (2001), and Calcano-Martinez v INS,
9
Mendoza-Linares argues that, if we were to grant his petition as to his
potential eligibility for asylum, we should likewise assert jurisdiction to
vacate the adverse administrative determinations in his case as to
withholding of removal and protection under the Convention Against
Torture. But Mendoza-Linares presents no serious argument that these
latter determinations escape the jurisdiction bar of § 242, and they
plainly do not.
MENDOZA-LINARES V. GARLAND 25
533 U.S. 348 (2001), which invoked such canons in
upholding habeas jurisdiction over certain challenges to
removal orders, Congress amended the INA by adding a
provision that expressly addresses the court’s jurisdiction
over constitutional questions and questions of law in
removal cases, namely, § 242(a)(2)(D). See 8 U.S.C.
§ 1252(a)(2)(D). That provision makes unambiguously
clear that § 242(a)(2) and § 242(e) bar judicial review of
constitutional challenges to expedited removal orders.
In St. Cyr, the BIA upheld an IJ’s denial of St. Cyr’s
request for a discretionary waiver of removal under former
§ 212 of the INA, concluding that recent amendments to the
INA rendered St. Cyr categorically ineligible for relief. See
St. Cyr v. INS, 229 F.3d 406, 408–09 (2d Cir. 2000). Several
months later, St. Cyr filed a habeas corpus petition
challenging the retrospective application of the INA
amendments to his case. Id. at 409. The district court
accepted jurisdiction and granted relief, and the Second
Circuit affirmed. St. Cyr, 533 U.S. at 293. In the Supreme
Court, the Government argued that the INA precluded any
judicial review of the determination that St. Cyr was
categorically ineligible for a § 212 waiver. Id. at 297–98.
The Court agreed that the then-existing version of the INA
precluded St. Cyr from filing a petition for review under
§ 242(a)(1) challenging the BIA’s decision, but the Court
held that habeas review nonetheless remained available. Id.
at 313–14. The Court noted that, in challenging the
retroactive application of the amendments concerning § 212
waiver authority, St. Cyr’s habeas petition “raise[d] a pure
question of law,” and the Court held that a construction of
the INA “that would entirely preclude review of a pure
question of law by any court would give rise to substantial
constitutional questions.” Id. at 298, 300. Under the canon
of constitutional avoidance, the Court held, such a reading
of the INA should not be adopted absent “a clear and
26 MENDOZA-LINARES V. GARLAND
unambiguous statement of congressional intent” to foreclose
habeas jurisdiction. Id. at 305. The Court ultimately
concluded that such a clear statement was lacking. Id. at
314.
In the companion case of Calcano-Martinez, the Court
reached a similar conclusion in the context of two aliens who
sought to challenge the same retroactive application of the
amendments concerning § 212 waiver authority. See 533
U.S. at 349. In a footnote, the Court specifically noted the
Government’s concession that, under the canon of
constitutional avoidance, the INA’s limitation on review of
removal orders involving criminal aliens, see 8 U.S.C.
§ 1252(a)(2)(C), should not be construed as precluding
“jurisdiction to review ‘substantial constitutional
challenges’ raised by aliens.” 533 U.S. at 350 n.2 (citation
omitted); see also Demore v. Kim, 538 U.S. 510, 517 (2003)
(applying, in the context of the INA’s limitation on judicial
review of determinations concerning bail and detention, the
canon of construction that “where Congress intends to
preclude judicial review of constitutional claims its intent to
do so must be clear” (quoting Webster, 486 U.S. at 603)).
In response to St. Cyr and Calcano-Martinez, Congress
amended the judicial review provisions in INA § 242 in two
key respects. See REAL ID Act, Pub. L. No. 109-13, Div.
B, § 106(a), 119 Stat. 302, 310 (2005); see also Patel v.
Garland, 142 S. Ct. 1614, 1623 (2022). First, Congress
added clarifying language stating that, except as provided in
§ 242(e), any use of habeas corpus to challenge removal
orders is precluded, and a petition for review in the court of
appeals is “the sole and exclusive means for judicial review”
of such orders. See 8 U.S.C. § 1252(a)(2), (5), (b)(9).
Second, Congress also added language specifically
addressing the clear statement rules that had been referenced
and applied in St. Cyr and Calcano-Martinez. On this
MENDOZA-LINARES V. GARLAND 27
subject, Congress added a new subparagraph (D) to
§ 242(a)(2) that provides the following rule of construction
for interpreting the INA’s prohibitions on judicial review:
(D) Judicial review of certain legal claims.
Nothing in subparagraph (B) or (C), or in any
other provision of this Act (other than this section)
which limits or eliminates judicial review, shall be
construed as precluding review of constitutional
claims or questions of law raised upon a petition for
review filed with an appropriate court of appeals in
accordance with this section.
Pub. L. No. 109-13, Div. B, § 106(a)(1)(A)(iii); see also
8 U.S.C. § 1252(a)(2)(D).
On its face, this statutory rule of construction identifies
those provisions “limit[ing] or eliminat[ing] judicial review”
that are not to “be construed as precluding review of
constitutional claims or questions of law.” Id. Those
provisions are: (1) “subparagraph (B)” of § 242(a)(2);
(2) “subparagraph . . . (C)” of § 242(a)(2); and (3) “any
other provision of [the INA] (other than this section).” Id.
(emphasis added). The import of this provision is clear and
unmistakable. By extending this rule of construction to “any
other provision” of the INA beyond § 242(a)(2)(B) and
§ 242(a)(2)(C), and then expressly stating that this extension
does not apply to “this section,” § 242(a)(2)(D) establishes
that its rule of construction is inapplicable to any provision
of § 242 other than the two specifically enumerated
subsections. Sections § 242(a)(2)(A) and 242(e)—which
are the relevant provisions that “limit[] or eliminate[]
judicial review” here—are thus expressly excluded from the
list of provisions that “shall be construed” as allowing
“review of constitutional claims or questions of law.”
28 MENDOZA-LINARES V. GARLAND
8 U.S.C. § 1252(a)(2)(D); see also Guerrier, 18 F.4th at 308
(holding that § 242(a)(2)(D) ‘“does not apply to the
jurisdictional limitations codified elsewhere’ in the section,
including the aforementioned limitation in subparagraph (A)
circumscribing judicial review of expedited removal orders”
(quoting Garcia de Rincon, 538 F.3d at 1138)); Singh, 982
F.3d at 784 (holding that, by its terms, § 242(a)(2)(D)
“plainly does not override the prohibition [on jurisdiction] in
Subparagraph (A)”). This conclusion is further reinforced
by the fact that subparagraphs (B) and (C) each contain the
proviso that their jurisdictional limitations apply “except as
provided in subparagraph (D),” but that phrase is not
included in subparagraph (A). See Russello v. United States,
464 U.S. 16, 23 (1983) (“[W]here Congress includes
particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate
inclusion or exclusion.” (citation omitted)).
With respect to § 242(a)(2)(A) and § 242(e), Congress
has thereby made “clear” its “inten[t] to preclude judicial
review of constitutional claims,” Webster, 486 U.S. at 603,
as well as questions of law. See United States v. Kwai Fun
Wong, 575 U.S. 402, 409–10 (2015) (noting that a clear
statement rule is satisfied when “traditional tools of statutory
construction . . . plainly show” Congress’s intent).
Accordingly, § 242(a)(2)(A) and § 242(e) are to be
construed in accordance with their broad plain language,
even if that precludes review of constitutional claims or
questions of law. See Guerrier, 18 F.4th at 312–13.
III
The dissent nonetheless insists that Congress’s express
exclusion of § 242(a)(2)(A) and § 242(e) from
§ 242(a)(2)(D)’s rule of construction preserving “review of
MENDOZA-LINARES V. GARLAND 29
constitutional claims” is not clear enough to satisfy
Webster’s rule that Congress must clearly state its intention
to bar review of colorable constitutional claims. To defeat
Webster’s canon of construction against precluding review
of constitutional claims, the dissent says, Congress would
have needed to add language that is more affirmative in its
phrasing, such as adding a clause to § 242(a)(2)(A) “stat[ing]
that we lack jurisdiction ‘including over [constitutional]
claims restored under subparagraph (D).” See Dissent at 59.
Because there is no such affirmative language, the dissent
contends, all of the provisions that Congress specifically
excluded from § 242(a)(2)(D)’s preservation of review of
constitutional claims must also be understood as preserving
review of constitutional claims. See Dissent at 59. For
multiple reasons, the dissent’s conclusion makes no sense
and contravenes the Supreme Court’s admonition that courts
“cannot press statutory construction to the point of
disingenuous evasion even to avoid a constitutional
question.” Miller v. French, 530 U.S. 327, 341 (2000)
(citation and internal quotation marks omitted).
First, the dissent’s analysis overlooks the crucial fact that
§ 242(a)(2)(D) reflects Congress’s direct response to a line
of Supreme Court decisions applying clear statement rules
to preserve judicial review, in removal cases, of
constitutional claims and pure questions of law. As the
Supreme Court has explained, clear statement rules
“facilitate[] a dialogue between Congress and the Court”
with respect to any issue as to which the Court has applied
such a rule:
If the Court invokes a clear statement rule to advise
that certain statutory interpretations are favored in
order to avoid constitutional difficulties, Congress
can make an informed legislative choice either to
amend the statute or to retain its existing text. If
30 MENDOZA-LINARES V. GARLAND
Congress amends, its intent must be respected even
if a difficult constitutional question is presented.
The usual presumption is that Members of
Congress, in accord with their oath of office,
considered the constitutional issue and determined
the amended statute to be a lawful one; and the
Judiciary, in light of that determination, proceeds to
its own independent judgment on the constitutional
question when required to do so in a proper case.
Boumediene v. Bush, 553 U.S. 723, 738 (2008) (emphasis
added). In a direct response to the Court’s holdings that,
absent a clear statement, judicial review of constitutional
claims and questions of law in removal cases was deemed to
be preserved, Congress enacted a provision that explicitly
addresses that very subject by specifically demarcating
which provisions of the INA are to be construed as
preserving review of constitutional claims and questions of
law—and § 242(a)(2)(A) and § 242(e) were expressly
carved out. See supra at 26–28. Because Congress made its
“informed legislative choice” to amend the INA to address
the application of the relevant clear statement rules to the
INA’s jurisdiction-stripping provisions, “its intent must be
respected even if a difficult constitutional question is
presented.” Boumediene, 553 U.S. at 738. By rejecting the
line Congress drew, and instead insisting on language that
uses affirmative phrasing in denying judicial review of
constitutional questions, the dissent seeks “a new rule
requiring Congress to provide a super-clear statement” on
that very same subject. Opati v. Republic of Sudan, 140
S. Ct. 1601, 1609 (2020) (emphasis added); see also Sebelius
v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 153 (2013) (stating
that Congress need not “incant magic words in order to speak
clearly”).
MENDOZA-LINARES V. GARLAND 31
Second, the dissent’s reading effectively reduces
§ 242(a)(2)(D) to surplusage. In light of the Supreme
Court’s decisions in St. Cyr and Calcano-Martinez, had
Congress not enacted § 242(a)(2)(D) in the REAL ID Act,
judicial review of questions of law and of constitutional
claims would have remained presumptively preserved. See
Boumediene, 553 U.S. at 738. The REAL ID Act’s
channeling provisions would still have eliminated those
decisions’ reliance on habeas jurisdiction and would instead
have consolidated that presumptively preserved judicial
review into the courts of appeals’ jurisdiction over petitions
for review. The result would be that, without § 242(a)(2)(D)
being added, the courts of appeal would have received intact
the presumptively preserved jurisdiction over constitutional
claims and questions of law. But under the dissent’s reading,
the very same preservation of jurisdiction over constitutional
claims that would have obtained had § 242(a)(2)(D) not been
enacted is one that follows with § 242(a)(2)(D) on the books.
According to the dissent’s reading, all that § 242(a)(2)(D)
did with respect to constitutional claims was to partially (and
pointlessly) codify a rule of construction that remains fully
applicable to the exact same extent as before. Because the
dissent’s reading reduces to a nullity § 242(a)(2)(D)’s
reference to jurisdiction over “constitutional claims,” it
cannot be correct. See Nielsen v. Preap, 139 S. Ct. 954, 969
(2019) (stating that, under the “canon against surplusage,”
“every word and every provision is to be given effect” and
“none should needlessly be given an interpretation that
causes it to duplicate another provision or to have no
consequence” (simplified)).
Third, the dissent’s reading of § 242(a)(2)(D) has no
plausible explanation for Congress’s explicit carve-out of
§ 242(a)(2)(A) and § 242(e). The dissent speculates that
perhaps “Congress saw no need to include (A) within
subparagraph (D) because it already was established,
32 MENDOZA-LINARES V. GARLAND
known, or obvious that constitutional claims in situation
(A)—unlike situations (B) and (C)—could be reviewed by
the court of appeals.” See Dissent at 59. The dissent was
unable to cite anything that would support such an absurd
suggestion, which gets things exactly backwards.
Subparagraph (A) addresses only expedited removal orders
under § 235(b)(1), which are generally applicable only to an
alien “who is arriving in the United States.” 8 U.S.C.
§§ 1225(b)(1)(A)(i), 1252(a)(2)(A). But it has been long
settled that “an alien seeking initial admission to the United
States requests a privilege and has no constitutional rights
regarding his application, for the power to admit or exclude
aliens is a sovereign prerogative.” Landon v. Plasencia, 459
U.S. 21, 32 (1982) (emphasis added); see also
Thuraissigiam, 140 S. Ct. at 1982. Thus, what is distinctive
about subparagraph (A) is that it is limited to precisely the
situation in which a denial of judicial review is least likely
to present constitutional difficulties. The only plausible
explanation for Congress’s deliberate carve-out of
§ 242(a)(2)(A) from the preservation of judicial review in
§ 242(a)(2)(D) is that Congress—which is presumed to
know the law, see Guerrero-Lasprilla v. Barr, 140 S. Ct.
1062, 1072 (2020)—was well aware that the aliens covered
by subparagraph (A) have no constitutional rights
concerning their applications and therefore could be denied
judicial review without constitutional difficulty.
Fourth, for similar reasons, there is no underlying basis
for the dissent’s insistence on a super-clear, affirmatively
phrased denial of jurisdiction over constitutional claims in
expedited removal cases. The reason why a clear statement
is required with respect to denials of judicial review of
constitutional claims is “to avoid the ‘serious constitutional
question’ that would arise if a federal statute were construed
to deny any judicial forum for a colorable constitutional
claim.” Elgin, 567 U.S. at 9 (citations omitted). But that
MENDOZA-LINARES V. GARLAND 33
predicate is absent here, because denying all judicial review
of constitutional questions concerning admission of an
arriving alien does not raise a substantial constitutional
question. In Thuraissigiam, this court had held that an
arriving alien “‘had a constitutional right to expedited
removal proceedings that conformed to the dictates of due
process,’” but the Supreme Court disagreed, noting that
“[t]hat holding is contrary to more than a century of
precedent.” 140 S. Ct. at 1981–82 (quoting 917 F.3d at 1111
n.15). Because an arriving alien “has no constitutional rights
regarding his application,” the Court explained, “[w]hatever
the procedure authorized by Congress is, it is due process as
far as an alien denied entry is concerned.” Id. at 1982
(citation omitted). Because the “procedure authorized by
Congress” here purposefully precludes resort to the courts,
that denial of judicial review cannot be said to deny due
process. As we explained in Guerrier, “Thuraissigiam’s
conclusion that the Due Process Clause does not require
review of how the agency determines whether a noncitizen
subject to expedited removal is eligible for asylum precludes
this court from reviewing Guerrier’s petition, despite his
raising a colorable constitutional claim.” 18 F.4th at 312
(emphasis added).
The dissent implausibly tries to limit Guerrier to its
specific facts, concluding that the “colorable constitutional
claim” in that case was not the “type of due process claim
that we have jurisdiction to consider.” See Dissent at 64–65.
The distinction is unfathomable. The whole premise of the
dissent is that, “because there is no other judicial forum for
constitutional challenges to expedited removal orders, and
because Congress has enacted no explicit provision
precluding judicial review of constitutional claims in that
context, we must apply the long-standing presumption that
colorable constitutional claims receive judicial review.” See
Dissent at 63 (second emphasis added). It necessarily
34 MENDOZA-LINARES V. GARLAND
follows from the dissent’s premise that all “colorable
constitutional claims receive judicial review,” and that
premise therefore does not allow for any distinction among
such claims. But the dissent’s premise, of course, is flatly
inconsistent with Guerrier’s holding that “Thuraissigiam
abrogated any ‘colorable constitutional claims’ exception to
the limits 8 U.S.C. § 1252(a)(2)(A) [INA § 242(a)(2)(A)]
places on this court’s jurisdiction to review Guerrier’s
petition.” 18 F.4th at 313. The dissent’s effort to evade
Guerrier by positing an unexplained (and inexplicable)
distinction between some subset of “colorable constitutional
claims” over which we retain jurisdiction and another subset
of “colorable constitutional claims” over which we lack
jurisdiction is unprincipled and ad hoc. There is no coherent
basis for distinguishing Guerrier, and that decision refutes
the dissent’s analysis. 10
Fifth, the dissent’s reading of § 242(a)(2)(D) rests on an
untenable distinction between that section’s reference to
“constitutional claims” and its reference to “questions of
law.” On its face, the rule of construction set forth in
§ 242(a)(2)(D) applies equally to both of these categories,
which are set forth in the same noun phrase: “Nothing in
subparagraph (B) or (C), or in any other provision of this Act
(other than this section) which limits or eliminates judicial
review, shall be construed as precluding review of
constitutional claims or questions of law raised upon a
petition for review filed with an appropriate court of appeals
in accordance with this section.” 8 U.S.C. § 1252(a)(2)(D)
10
What the dissent really seems to be saying is that, under its reading of
Thuraissigiam, the constitutional claim asserted in Guerrier was not
colorable, because it was based on a “challenge[] [to] the details of how
the [expedited removal] determination had been made.” See Dissent at
64. But that proffered distinction is foreclosed by Guerrier, which
squarely holds that “we conclude that Guerrier raises a colorable
constitutional claim.” 18 F.4th at 311.
MENDOZA-LINARES V. GARLAND 35
(emphasis added). We held in Singh that the language of
§ 242(a)(2)(A) and § 242(a)(2)(D) plainly prohibited us
from asserting jurisdiction over “legal questions” involving
expedited removal orders, and that they did so with sufficient
clarity to satisfy the clear statement rule applicable to
prohibitions on “judicial review of administrative action.”
982 F.3d at 781, 784 (citation omitted). Because
§ 242(a)(2)(D) adopts an identical rule, using a single noun
phrase, with respect to both “constitutional claims or
questions of law,” the construction of the statute that we
recognized in Singh with respect to “questions of law”
necessarily applies equally to the other half of the noun
phrase, “constitutional claims.” See Reno v. Bossier Parish
School Bd., 528 U.S. 320, 329 (2000) (“[W]e refuse to adopt
a construction that would attribute different meanings to the
same phrase in the same sentence, depending on which
object it is modifying”). The dissent’s effort to avoid Singh
by drawing a distinction between “questions of law” and
“colorable constitutional claims” therefore fails. See Dissent
at 44 n.3.
The dissent seems to think that the clear statement rule
applicable to limitations on judicial review of constitutional
claims is sufficient to support such a distinction, but that is
wrong. St. Cyr, after all, relied primarily on a comparable
clear statement rule applicable to denial of all judicial review
of questions of law, see 533 U.S. at 300, 305, and so both
halves of the noun phrase “constitutional claims or questions
of law” are subject to clear statement rules. And, of course,
Singh found the language of § 242(a)(2) to constitute a
sufficiently clear statement of Congress’s intent. See 982
F.3d at 781. The dissent’s conclusion simply cannot be
reconciled with Singh.
Sixth, the dissent’s reading of the statute violates the
settled rule that a statutory construction “that furthers rather
36 MENDOZA-LINARES V. GARLAND
than obstructs the [statute’s] purpose should be favored.”
Connell v. Lima Corp., 988 F.3d 1089, 1101 (9th Cir. 2021)
(quoting Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 63 (2012)). As the title of
§ 235 confirms, the purpose of § 235(b)(1)’s special
procedures is to ensure the “expedited removal of
inadmissible arriving aliens,” and that purpose is further
underscored by the statute’s strict time deadlines on IJ
review of credible fear determinations. See 8 U.S.C.
§ 1225(b)(1)(B)(iii)(III) (“Review shall be concluded as
expeditiously as possible, to the maximum extent practicable
within 24 hours, but in no case later than 7 days after the date
of the determination under subclause (I).”). Recognizing a
right to judicial review of colorable constitutional claims in
expedited removal cases would largely thwart that purpose
by interposing the substantial delays associated with such
review into what is supposed to be a highly streamlined
process designed to expeditiously evaluate the claims of an
alien who arrives at the doorstep of our Nation. That is
further confirmation that the dissent’s reading of § 242 is
plainly incorrect.
In a considerable understatement, the dissent concedes
that adding a “layer of review for constitutional claims may
slow that process.” See Dissent at 63. But the dissent argues
that we should overlook the demolition of the expedited
removal system that would result from such review, because
acknowledging that consequence would supposedly
improperly take into account “policy considerations.” Id.
On the contrary, the fact that the dissent’s egregious
misreading of the INA would produce a result that
“effectively thwart[s] the Act’s manifest purpose,” confirms
how thoroughly wrong the dissent’s position is. OBB
Personenverkehr AG v. Sachs, 577 U.S. 27, 36 (2015)
(citation omitted).
MENDOZA-LINARES V. GARLAND 37
IV
Even if the dissent were right that we retain jurisdiction
over “colorable constitutional claims,” Mendoza-Linares’s
petition must still be dismissed because he has not presented
any such colorable constitutional claim.
Mendoza-Linares’s contention is that, under our decision
in East Bay, the Transit Bar’s substantive limitations on the
granting of asylum are contrary to the INA and that the
asylum officer and IJ therefore erred in relying on the Transit
Bar in concluding that there was not a “significant
possibility” that he “could establish eligibility for asylum”
under the INA. 8 U.S.C. § 1225(b)(1)(B)(v). He argues that
the asylum officer and the IJ should instead have focused on
whether there was a significant possibility that he could
establish a well-founded fear of persecution on a protected
ground. This is a colorable statutory argument; indeed,
under our caselaw, it would seem to be meritorious. See East
Bay, 993 F.3d at 669–75. But to fall within the jurisdiction
that the dissent posits, Mendoza-Linares must present a
colorable constitutional claim. He has not done so.
Mendoza-Linares attempts to dress up his statutory
argument in constitutional garb by asserting that he has a
“liberty interest,” protected by procedural due process, in the
“statutory rights” reflected in the INA’s expedited-removal
provisions. This argument is directly contrary to
Thuraissigiam, which explicitly rejected our view that
arriving aliens have “a constitutional right to expedited
removal proceedings that conform[] to the dictates of due
process.” 140 S. Ct. at 1981 (citation omitted).
Mendoza-Linares alternatively argues that
Thuraisiggiam itself effectively constitutionalized the
statutory procedures governing expedited removal. Seizing
38 MENDOZA-LINARES V. GARLAND
on the Court’s comment that “the decisions of executive or
administrative officers, acting within powers expressly
conferred by Congress, are due process of law,” 140 S. Ct.
at 1982 (citation omitted), Mendoza-Linares argues that, as
a result, any violation of the statutory procedures governing
expedited removal constitutes a failure to provide due
process. The dissent endorses this audacious argument,
which it claims is further supported by Guerrier’s statement
that “in the expedited removal context, a petitioner’s due
process rights are coextensive with the statutory rights
Congress provides.” 18 F.4th at 310 (emphasis added)
(quoted at Dissent at 64). But Thuraissigiam reaffirmed that
“‘an alien seeking initial admission to the United States
requests a privilege and has no constitutional rights
regarding his application,’” meaning that such an alien “has
only those rights regarding admission that Congress has
provided by statute.” 140 S. Ct. at 1982–83 (citation
omitted). Accordingly, any rights Mendoza-Linares may
have in regard to removal or admission are purely statutory
in nature and are not derived from, or protected by, the
Constitution’s Due Process Clause. By insisting that the
“rights regarding admission that Congress has provided by
statute,” id. at 1983, should be deemed be of constitutional
status, the dissent would turn Thuraissigiam on its head. See
Dissent at 63–65.
Moreover, the dissent’s finding of a colorable
constitutional claim in this case fails on its own terms. The
dissent argues that the Due Process Clause requires that
Mendoza-Linares be afforded the statutory “right to a
determination whether he had a significant possibility of
establishing eligibility for asylum.” See Dissent at 64
(citation omitted). But as explained earlier, Mendoza-
Linares plainly received such a determination, and it was
adverse. See supra at 22. Mendoza-Linares’s complaint is
instead that this determination was tainted by the Transit
MENDOZA-LINARES V. GARLAND 39
Bar, but that goes to the merits of that determination and
“how it was made,” 140 S. Ct. at 1983 (emphasis added), and
the dissent concedes that, even under its reading of
Thuraissigiam, Mendoza-Linares has no due process right to
review of any such matters, see Dissent at 64–65, which go
beyond ascertaining that such a “determination” was made. 11
V
Because § 242 bars us from asserting jurisdiction over
Mendoza-Linares’s petition for review, and a habeas court
would likewise lack jurisdiction, the only remaining
question is whether, by denying all judicial review, § 242 is
unconstitutional as applied in this case. In view of the fact
that Mendoza-Linares lacks any constitutionally protected
due process rights concerning whether he will be removed
or admitted, see supra at 31–32, 37–38, the answer to that
question is plainly no. Further, the Supreme Court in
Thuraissigiam expressly rejected the alternative theory that
a complete denial of judicial review in expedited removal
cases effects an unconstitutional suspension of the writ of
habeas corpus. See 140 S. Ct. at 1971–81.
11
Mendoza-Linares also briefly contends that he has presented a
colorable constitutional claim that denying judicial review would leave
in place an administrative regime that violates the nondelegation
doctrine. This argument lacks merit. The asylum laws are adequately
governed by an “intelligible principle” supplied by Congress, Gundy v.
United States, 139 S. Ct. 2116, 2123 (2019) (plurality), and those
legislatively prescribed “discernable standard[s]” are “adequate under
the approach th[e] [Supreme] Court has taken for many years” in
assessing such questions, id. at 2131 (Alito, J., concurring in the
judgment). The fact that, due to the lack of judicial review, errors may
occur in the application of the expedited removal statute in particular
cases does not give rise to a nondelegation problem.
40 MENDOZA-LINARES V. GARLAND
Because we lack jurisdiction to consider the petition for
review, we dismiss Mendoza-Linares’s petition.
PETITION FOR REVIEW DISMISSED.
GRABER, Circuit Judge, dissenting:
I dissent. The majority opinion flouts both
Congressional intent and binding precedent from the
Supreme Court and this court, depriving a litigant of the
judicial review to which he is entitled with respect to his
colorable—indeed, meritorious—constitutional claim.
Petitioner Hever Alberto Mendoza Linares is a native
and citizen of El Salvador. After passing through Guatemala
and Mexico, he entered the United States without inspection.
Officers from the Department of Homeland Security
(“DHS”) detained him on the same day. Two days later,
pursuant to 8 U.S.C. § 1225, DHS issued an expedited
removal order against Petitioner. An asylum officer, after
conducting a “credible fear” interview, concluded that
Petitioner had not shown a reasonable fear of future
persecution on account of a protected ground, even though
Petitioner himself was credible. Petitioner sought review by
an immigration judge (“IJ”), who held a hearing and
affirmed the expedited removal order. The IJ rejected
Petitioner’s asylum claim solely because of 8 C.F.R.
§ 208.13(c)(4) (2020). That regulation, which the parties
refer to as the “Transit Bar,” restricted asylum for a non-
MENDOZA-LINARES V. GARLAND 41
citizen like Petitioner who traveled to the United States
through a country other than his own. 1
Petitioner timely petitions for review in this court,
arguing that the IJ violated his due process rights by failing
to consider, as the statute requires, whether he has a credible
asylum claim. In my view: (1) We have jurisdiction to
review Petitioner’s colorable constitutional claim, because
no other judicial forum exists in which that claim can be
reviewed and Congress has not explicitly foreclosed our
review of colorable constitutional claims; (2) Petitioner did
not receive the process that Congress provided because the
IJ did not consider whether Petitioner had established a
significant possibility that he could show eligibility for
asylum. 8 U.S.C. § 1225(b)(1). Accordingly, I would grant
the petition and remand for further proceedings.
BACKGROUND
On February 10, 2020, Petitioner entered the United
States without a valid entry document. An immigration
official determined that Petitioner was inadmissible and
processed him for expedited removal. Because Petitioner
expressed a fear of returning to El Salvador, the immigration
official referred Petitioner to an asylum officer for a
“credible fear” interview.
An asylum officer interviewed Petitioner on March 31,
2020. Petitioner testified that he had traveled to the United
States through two countries after leaving El Salvador:
Guatemala and Mexico. At the time, the Transit Bar
prohibited a grant of asylum to any non-citizen “who enters,
1
I use the term “non-citizen” as shorthand for “non-citizen of the United
States” and as equivalent to the statutory term “alien.” See 8 U.S.C.
§ 1101(a)(3).
42 MENDOZA-LINARES V. GARLAND
attempts to enter, or arrives in the United States across the
southern land border on or after July 16, 2019, after
transiting through at least one country outside the” non-
citizen’s home country “en route to the United States.”
8 C.F.R. § 208.13(c)(4) (2020). 2 Petitioner told the officer
that his work as a disc jockey for clients at political events
had required him to speak anti-crime statements into a
microphone. Those statements triggered retaliation by
criminal groups. Criminals shot at, and threw rocks at,
Petitioner “about [six] times” while he worked at his job.
Petitioner’s other anti-crime activities outside of work
caused the MS-13 gang to beat up Petitioner in his home,
twice. Petitioner further testified that this history, along with
his tattoos, would put him in danger if he returned to El
Salvador. Although the asylum officer found Petitioner to
be a credible witness, the officer determined that Petitioner
was ineligible for asylum under the Transit Bar.
A supervisor approved the asylum officer’s finding.
Petitioner sought review by an IJ.
On May 28, 2020, the IJ affirmed the decision of the
asylum officer. Though the IJ thought that “the asylum
officer made a mistake when the officer concluded that the
past harm that [Petitioner] faced could not constitute
persecution under the law of the Ninth Circuit[,]” the IJ
agreed “with the overall conclusion” of the asylum officer.
2
The regulation includes three exceptions, none of which applies here:
(1) the non-citizen applied for and received a final judgment denying
protection in at least one such country; (2) the non-citizen was a “victim
of a severe form of trafficking in persons” under 8 C.F.R. § 214.11; or
(3) the non-citizen traveled only through countries not parties to the
relevant international agreements. 8 C.F.R. § 208.13(c)(4)(i)–(iii)
(2020).
MENDOZA-LINARES V. GARLAND 43
Specifically, the IJ held that the Transit Bar applied,
foreclosing any possibility of asylum.
The IJ also praised Petitioner’s credibility, sincerity, and
the underlying actions that had caused Petitioner to have
trouble with the El Salvadoran gangs: “Like the asylum
officer, I find that you’re very credible. You strike me as a
sincere, hardworking individual. . . . You did have the guts
to paint over the gang symbol for the house that you were
renting, and you were threatened by and harmed by the
gangs for doing that, and then you did it a second time.” But
the IJ noted that “[t]he laws are very specific. And for the
reasons that I just determined, the asylum officer made the
. . . correct determination in your case.”
On June 8, 2020, Petitioner timely filed this petition for
review. He remains detained.
STANDARD OF REVIEW
“We determine our own jurisdiction de novo. We also
review constitutional claims de novo.” Guerrier v. Garland,
18 F.4th 304, 308 (9th Cir. 2021) (citations and internal
quotation marks omitted). Likewise, claims of “due process
violations in removal proceedings” are reviewed de novo.
Cruz Rendon v. Holder, 603 F.3d 1104, 1109 (9th Cir. 2010).
JURISDICTION
DHS challenges our jurisdiction, contending that
“[t]here is no cause to address any merits issue because the
petition for review should be dismissed.” Specifically, DHS
argues that a jurisdiction-stripping statute, 8 U.S.C. § 1252,
removes any judicial forum for review. On the merits,
Petitioner asserts a violation of his constitutional rights,
namely his right to due process. The question, then, is
44 MENDOZA-LINARES V. GARLAND
whether we retain jurisdiction to review Petitioner’s due
process claim.
For Congress to deny a litigant “any judicial forum for a
colorable constitutional claim,” Congress must make “clear”
that it intended to preclude our review. Webster v. Doe, 486
U.S. 592, 603 (1988); see also Garland v. Aleman Gonzalez,
142 S. Ct. 2057, 2067 (2022); (citing Webster with
approval); Elgin v. Dep’t of Treasury, 567 U.S. 1, 9 (2012)
(“Webster’s standard does not apply where Congress simply
channels judicial review of a constitutional claim to a
particular court.”). That is, if there is no judicial forum and
no clear preclusion, we consider it “at least as likely that
Congress failed to address the issue, or assumed review of
constitutional questions, as it is that Congress sought to
preclude such review altogether.” Marozsan v. United
States, 852 F.2d 1469, 1479 (7th Cir. 1988) (en banc). We
have explained the rule as follows: unless Congress
provides “an explicit statutory provision that bars judicial
consideration of [Petitioner]’s constitutional claims, we
should conclude that Congress did not intend to preclude
consideration of colorable constitutional claims arising out
of actions taken under a federal statute.” Ctr. for Biological
Diversity v. Bernhardt, 946 F.3d 553, 561 (9th Cir. 2019)
(first emphasis added) (citations and internal quotation
marks omitted). 3
In short, we retain jurisdiction if Congress provided
(1) no forum for judicial review and (2) no explicit text that
precludes our review of constitutional claims; and finally, as
3
A different rule applies to non-constitutional questions of law. As to
those questions, we lack jurisdiction. Singh v. Barr, 982 F.3d 778, 783
(9th Cir. 2020). Singh did not involve, and therefore did not consider,
whether we have jurisdiction to review colorable constitutional claims
relating to expedited removal orders.
MENDOZA-LINARES V. GARLAND 45
an added requirement to prevent abuse of this rule, we retain
jurisdiction only (3) if the constitutional claim is colorable.
1. Congress Provided No Forum for Petitioner’s
Constitutional Claim.
a. Direct Review of Removal Order
Petitioner challenges an order of removal issued by
DHS. Title 8 U.S.C. § 1252 establishes the scheme for
judicial review of final removal orders. Captioned
“[g]eneral orders of removal,” subsection (a)(1) states in
full:
Judicial review of a final order of removal (other
than an order of removal without a hearing [under
the expedited removal program]) is governed only
by [the Hobbs Act], except as provided in
subsection (b) and except that the court may not
order the taking of additional evidence under
section 2347(c) of such title.
Id. § 1252(a)(1) (emphasis added). The Hobbs Act, in turn,
vests the federal courts of appeals with “exclusive
jurisdiction” to, among other things, “set[] aside . . . in whole
or in part, the order of the agency” at issue. 28 U.S.C.
§ 2349(a). Thus, Congress designated the federal courts of
appeals as the proper forum to review challenges, like
Petitioner’s, that seek to set aside final orders of removal. 4
4
I disagree with DHS’s argument that § 1252(a)(1) expressly excludes
jurisdiction over all expedited removal orders. Subsection (a)(1)
excludes review of “order[s] of removal without a hearing [under the
expedited removal program].” 8 U.S.C. § 1252(a)(1) (emphasis added).
Here, Petitioner received a hearing when an immigration judge reviewed
his appeal. See id. § 1225(b)(1)(B)(iii)(III) (“Such review shall include
46 MENDOZA-LINARES V. GARLAND
But that does not mean that we may entertain Petitioner’s
challenge. Petitioner challenges a removal order that arose
through a process known as “expedited removal.” Through
the Illegal Immigration Reform and Immigration
Responsibility Act of 1996 (“IIRIRA”), Congress eliminated
almost all judicial review of challenges related to that
category of removal orders. Specifically, Congress declared
that “no court shall have jurisdiction to review—except as
provided in subsection (e), any individual determination or
to entertain any other cause or claim arising from or relating
to the implementation or operation of an order of [expedited]
removal.” 8 U.S.C. § 1252(a)(2)(A)(i) (emphasis added).
That text, on its face, sweeps broadly. Indeed, the
Supreme Court recently interpreted this very section by
noting that “the word ‘any’ has an expansive meaning,” Patel
v. Garland, 142 S. Ct. 1614, 1622 (2022) (internal quotation
marks omitted), and that the phrase the “operation of”
“refer[s] to the Government’s efforts to enforce or
implement” the relevant statutes. Aleman Gonzalez, 142 S.
Ct. at 2064 (2022). “[E]xcept as provided in subsection (e),”
a federal court may not review any claim relating to the
government’s effort to enforce or implement an expedited
removal order. 8 U.S.C. § 1252(a)(2)(A)(i). Petitioner
an opportunity for the alien to be heard and questioned by the
immigration judge, either in person or by telephonic or video
connection.”). The removal order also qualifies as a “final” order of
removal because the order cannot be appealed administratively. See,
e.g., Bartolome v. Sessions, 904 F.3d 803, 809 (9th Cir. 2018) (noting,
in a different procedural context, that we retain jurisdiction under
§ 1252(a)(1) to review an immigration judge’s non-appealable order of
removal); Tomas-Ramos v. Garland, 24 F.4th 973, 980 n.3 (4th Cir.
2022) (“Because the streamlined process . . . does not include an appeal
to the Board of Immigration Appeals, the IJ’s ruling on review . . . is the
agency’s ‘final order’ for purposes of judicial review under 8 U.S.C.
§ 1252(a)(1).”).
MENDOZA-LINARES V. GARLAND 47
brings such a claim. The text does not distinguish among
reasons for seeking review. Thus, 8 U.S.C.
§ 1252(a)(2)(A)(i) closes the door to all review “except as
provided in subsection (e).”
This construction aligns with our prior decisions. See,
e.g., United States v. Barajas-Alvarado, 655 F.3d 1077, 1082
(9th Cir. 2011) (“Congress expressly deprived courts of
jurisdiction to hear a direct appeal from an expedited
removal order.”); Avendano-Ramirez v. Ashcroft, 365 F.3d
813, 818 (9th Cir. 2004) (“We have described this section as
one which illustrates that when Congress meant to strip
jurisdiction over all matters relating to an immigration order
or decision, it did so unequivocally and unambiguously.”
(internal quotation marks omitted)). It also aligns with the
general aim of IIRIRA: “to protect the Executive’s
discretion from undue interference by the courts[.]” Dep’t
Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1966
(2020) (internal quotation marks omitted). Unless
subsection (e) presents a path for review, there is no
statutorily authorized forum for Petitioner’s constitutional
claim.
b. Other Forms of Review
Subsection (e) provides “some avenues of judicial
review.” Pena v. Lynch, 815 F.3d 452, 456 (9th Cir. 2016),
abrogated on other grounds as stated in Guerrier, 18 F.4th at
311. But “it limits review to specific challenges and
venues.” Singh, 982 F.3d at 782. The relevant provision,
subsection (e)(2), states:
Judicial review of any determination made under
[the expedited removal program] is available in
habeas corpus proceedings, but shall be limited to
determinations of—
48 MENDOZA-LINARES V. GARLAND
(A) whether the petitioner is an alien,
(B) whether the petitioner was ordered removed
under such section, and
(C) whether the petitioner can prove . . . that the
petitioner is [a lawful permanent resident], has
been admitted as a refugee, . . . or has been
granted asylum . . . .
8 U.S.C. § 1252(e)(2). 5 On its face, neither (A) nor (C)
applies here—Petitioner concedes that he is not a citizen of
the United States and that he has never been granted lawful
entry. 6
Nor does subparagraph (B) apply. It means that “the
court may only ask whether there was a removal order and
whether it relates to the petitioner.” Avendano-Ramirez, 365
F.3d at 819 n.16. We may not ask whether a non-citizen
“was wrongfully deprived of the administrative review
permitted under the statute and applicable regulations.”
Barajas-Alvarado, 655 F.3d at 1082; see also Castro v. U.S.
Dep’t Homeland Sec., 835 F.3d 422, 431 (3rd Cir. 2016)
5
See also subsection (e)(5), titled “[s]cope of inquiry,” which provides:
In determining whether an alien has been ordered removed
under [the expedited removal program], the court’s inquiry
shall be limited to 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 inadmissible or entitled
to any relief from removal.
Id. § 1252(e)(5) (emphasis added).
6
Subsection (e)(3) also authorizes certain system-wide challenges, but
Petitioner’s as-applied challenge is not that kind of challenge. Id.
§ 1252(e)(3).
MENDOZA-LINARES V. GARLAND 49
(review under subparagraph (B) “should only be for whether
an immigration officer issued that piece of paper and
whether the Petitioner is the same person referred to in that
order” (internal quotation marks omitted)).
To be sure, some courts have found review available
through the Suspension Clause. See, e.g., LaGuerre v. Reno,
164 F.3d 1035, 1039 (7th Cir. 1998); Ramallo v. Reno, 114
F.3d 1210, 1214 (D.C. Cir. 1997). But the Supreme Court
clarified recently that the Suspension Clause does not require
“‘administrative or judicial review leading to’ ‘authorization
for an alien [stopped at the border] to remain in a country
other than his own.’” Singh, 982 F.3d at 784 n.4 (quoting
Thuraissigiam, 140 S. Ct. at 1971–81) (brackets in original).
So the Suspension Clause offers no avenue for Petitioner’s
claim.
Nor can Petitioner seek review under any other statute.
Congress explicitly eliminated alternative paths to relief in
§ 1252. Subsection (a)(5) provides that a petition for review,
filed timely in the appropriate court of appeals, is the “sole
and exclusive means for judicial review of an order of
removal.” 8 U.S.C. § 1252(a)(5). And, except as provided
in § 1252 itself, “no court shall have jurisdiction . . . to
review such an order or such questions of law or fact.” Id.
§ 1252(b)(9). Congress thereby firmly closed the door to
any forum for review of ordinary legal challenges.
But a “foreboding line of Supreme Court cases”
consistently has construed statutory text, no matter how
sweeping, to permit review of colorable constitutional
claims. Bartlett v. Bowen, 816 F.2d 695, 700 & n.15 (D.C.
Cir. 1987) (citing cases). In Johnson v. Robison, 415 U.S.
361 (1974), for example, a conscientious objector
challenged a federal statute that provided educational
50 MENDOZA-LINARES V. GARLAND
benefits to veterans but excluded conscientious objectors.
Id. at 364. His action appeared to be barred by statute:
[T]he decisions of the Administrator on any
question of law or fact under any law administered
by the Veterans’ Administration providing benefits
for veterans . . . shall be final and conclusive and no
other official or any court of the United States shall
have power or jurisdiction to review any such
decision . . . .
38 U.S.C. § 211(a) (1970) (repealed 1991) (emphasis
added). Despite the breadth of that text, the Supreme Court
refused to interpret the provision in a manner that would
have foreclosed all judicial review. Constitutional claims
could proceed. Johnson, 415 U.S. at 366.
Similarly, in Oestereich v. Selective Serv. Sys. Local Bd.
No. 11, 393 U.S. 233 (1968), the Court interpreted a
provision limiting review of Selective Service decisions.
During the 1960s, the Selective Service Commission
retaliated against students involved in anti-Vietnam War
protests. Some federal courts found the Commission’s
actions to be illegal. Congress responded by adopting a
statute that stripped judicial review over such challenges:
“No judicial review shall be made of the classification or
processing of any registrant . . . except as a defense to a
criminal prosecution . . . after the registrant has responded
either affirmatively or negatively to an order to report for
induction.” Military Selective Service Act of 1967, Pub. L.
No. 90-40, 81 Stat. 100, 104 (1967) (codified at 50 U.S.C.
§ 460(b)(3) (1964)) (emphasis added). Despite the clarity of
that text, the Court permitted constitutional claims to be
heard. The Court noted that “[e]xamples are legion where
literalness in statutory language is out of harmony . . . with
MENDOZA-LINARES V. GARLAND 51
constitutional requirements . . . .” Oestereich, 393 U.S. at
238.
We, too, have long construed seemingly ironclad
statutory provisions to permit review of constitutional
claims. In Kicking Woman v. Hodel, 878 F.2d 1203 (9th
Cir. 1989), for example, relatives of Joseph Kicking Woman
sought review of an administrative finding that Leo Lee Old
Person was Joseph’s son and sole heir. Id. at 1203–04. A
federal statute appeared to bar any review:
When any Indian to whom an allotment of land has
been made, or may hereafter be made, dies before
the expiration of the trust period and before the
issuance of a fee simple patent, without having
made a will disposing of said allotment as
hereinafter provided, the Secretary of the Interior,
upon notice and hearing, under such rules as he may
prescribe, shall ascertain the legal heirs of such
decedent, and his decision thereon shall be final and
conclusive.
25 U.S.C. § 372 (1934) (emphasis added).
Faced with that text—which prior decisions had
“interpreted literally” to foreclose all judicial review,
Kicking Woman, 878 F.2d at 1206—we considered “[t]he
narrow question . . . whether, in the face of a general bar to
judicial review, the federal courts have jurisdiction to hear a
constitutional challenge to actions (i.e. procedures,
proceedings, or decisions) authorized by a specific statute,
in the absence of a facial attack on the statute itself.” Id. at
1205 n.7. After examining the statutory text and its
legislative history, we recognized “a due process exception
to the statutory bar” provided by the statute. Id. at 1205. We
thus “decline[d] to expand the scope of [the relevant statute]
52 MENDOZA-LINARES V. GARLAND
to constitutionally-founded claims and” held “that the
section does not preclude the invocation of” our jurisdiction.
Id. at 1207.
In Edelman v. W. Airlines, Inc., 892 F.2d 839, 841 (9th
Cir. 1989), after an airline fired a union worker, the union
filed a grievance, lost, and sought review. A federal statute
appeared to preclude our review. We described the statute
governing “the scope of our review of the” agency’s order as
“among the narrowest known to the law.” Id. at 842 (internal
quotation marks omitted). The Supreme Court had expressly
interpreted the statute as “limited to three specific grounds,”
Union Pac. R.R. Co. v. Sheehan, 439 U.S. 89, 93 (1978) (per
curiam), none of which applied in Edelman. Nonetheless,
we held that we had jurisdiction to review “cases in which a
prospective plaintiff raises a due process challenge to the
conduct of the . . . proceedings.” Edelman, 892 F.2d at 845(ellipsis in original). “[A] constitutional challenge
constitutes an independent ground, in addition to the three
expressly stated in [the relevant statute], upon which a
federal court has jurisdiction to review decisions of” the
administrative agency. Id. at 847. In so holding, we
reasoned that “[c]onstitutional questions obviously are
unsuited to resolution in administrative hearing procedures
and, therefore, access to the courts is essential to the decision
of such questions.” Id. (quoting Califano v. Sanders, 430
U.S. 99, 109 (1977) (brackets in original)).
Nor are those decisions outliers. More recently, in
Center for Biological Diversity, we considered an action
brought by a conservation organization. 946 F.3d at 553. A
federal statute enacted “to ensure an expedited process”
appeared to preclude our review. Id. at 557. That statute
provided simply that “[n]o determination, finding, action, or
omission under this chapter shall be subject to judicial
review.” Id. (quoting 5 U.S.C. § 805). But we concluded
MENDOZA-LINARES V. GARLAND 53
that “we may presume that Congress will use specific
language if it intends to foreclose judicial review of
constitutional claims. Here, the [j]urisdiction-[s]tripping
[p]rovision does not include any explicit language barring
judicial review of constitutional claims. Therefore, we
presume that Congress did not intend to bar such review.”
Id. at 561 (emphasis added); see also Cath. Soc. Servs., Inc.
v. Reno, 134 F.3d 921, 927 (9th Cir. 1997) (per curiam)
(“We agree with Catholic Social Services that a statute that
completely immunizes a statute from constitutional attack
would raise difficult constitutional issues. Thankfully,
however, we need not address those issues.” (internal
citations omitted)); Staacke v. U.S. Sec’y of Labor, 841 F.2d
278, 281 (9th Cir. 1988) (“Even where the statutory
provision absolutely bars judicial review . . . courts maintain
jurisdiction to consider constitutional claims[.]”).
With that background principle in mind, I turn to the next
criteria affecting our jurisdiction: whether Congress
explicitly barred review of constitutional claims in the
present context and, if not, whether Petitioner’s due process
claim is colorable.
2. Congress Has Not Explicitly Barred
Constitutional Claims.
I would follow the Supreme Court’s template in
Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062 (2020), which
interpreted this very same section—8 U.S.C. § 1252. There,
the Court first examined the statute’s text and then utilized
other tools of construction: context, statutory history, and
legislative history. Guerrero-Lasprilla, 140 S. Ct. at 1068–
72.
54 MENDOZA-LINARES V. GARLAND
a. Text
Title 8 U.S.C. § 1252(a)(2)(A) and (e), discussed above,
do not refer to constitutional claims. For that reason,
§ 1252(a)(2)(A) and (e) do not suffice as an explicit
Congressional bar to review of constitutional claims.
Constitutional claims are mentioned in § 1252(a)(2)(D), but
this subparagraph does not explicitly preclude judicial
review of constitutional claims. Captioned “[j]udicial
review of certain legal claims,” subparagraph (D) provides:
Nothing in subparagraph (B) or (C), or in any other
provision of this chapter (other than this section)
which limits or eliminates judicial review, shall be
construed as precluding review of constitutional
claims or questions of law raised upon a petition for
review filed with an appropriate court of appeals in
accordance with this section.
Id. § 1252(a)(2)(D). Subparagraph (B) concerns certain
discretionary relief; subparagraph (C) concerns certain
criminal non-citizens.
One reasonable interpretation of the text of subparagraph
(D) is that, by permitting review of constitutional claims as
to subparagraphs (B) and (C) but not mentioning
subparagraph (A), Congress implied that we lack
jurisdiction over constitutional claims that relate to
subparagraph (A). To illustrate the logic, suppose that
someone makes the statement, “My children are Anna, Bob,
and Cathy.” Logically, one can infer that David’s exclusion
from that list means that David is not one of the speaker’s
children. This logic stands as a canon of statutory
interpretation called expressio unius est exclusio alterius:
“the canon that expressing one item of a commonly
associated group or series excludes another left
MENDOZA-LINARES V. GARLAND 55
unmentioned.” United States v. Vonn, 535 U.S. 55, 65
(2002).
But an implication does not meet the “heightened
standard” required to bar constitutional claims. Elgin, 567
U.S. at 9; see also Boechler, P.C. v. Comm’r, 142 S. Ct.
1493, 1499 (2022) (“We agree that this is a plausible
interpretation of the statute. Some might even think it better
. . . . But in this context, better is not enough. To satisfy the
clear-statement rule, the jurisdictional condition must be just
that: clear.”). Something that is implicit, by its nature, is not
explicit. Indeed, the Supreme Court has told us as much in
other contexts in which a clear statement of congressional
intent is required: “[i]mplications from statutory text or
legislative history are not sufficient . . . ; instead, Congress
must articulate specific and unambiguous statutory
directives to effect” the result. INS v. St. Cyr, 533 U.S. 289,
299 (2001), superseded by statute on other grounds as stated
in Nasrallah v. Barr, 140 S. Ct. 1683, 1690 (2020).
Adding to the ambiguity, the structure of the sentence in
subparagraph (D) contains not a positive assertion of
inclusion (“my children are A, B, and C”) but rather a
statement of non-exclusion. Returning to Anna, Bob, and
Cathy, suppose that our speaker makes the following
statement: “Nothing about their college grades will prevent
Bob and Cathy from getting into law school.” Depending on
what you know about Anna, you could understand Anna’s
omission in several different ways. Perhaps Anna is only
eight years old and has no college grades. Perhaps Anna is
a physicist with no interest in law school. Perhaps Anna’s
credentials are not in doubt, as she is a straight-A student at
college who will be snapped up by every law school to which
she applies. Or perhaps Anna is irrelevant to the discussion
because she is barely passing her college classes, and those
grades will prevent her from attending any law school.
56 MENDOZA-LINARES V. GARLAND
Alternatively, perhaps Anna already is in law school or has
passed the bar exam and so the notion of her future
admission to law school is inapplicable. None of those
interpretations is inherently the most likely from the parent’s
bare statement. Rather, the meaning of the spoken phrase as
applied to the silent subject, Anna, depends entirely on the
context.
One other interpretive question remains: the function of
the parenthetical phrase in subparagraph (D). “Nothing in
subparagraph (B) or (C), or in any other provision of this
chapter (other than this section) which limits or eliminates
judicial review, shall be construed as precluding review of
constitutional claims . . . .” 8 U.S.C. § 1252(a)(2)(D)
(emphasis added). We have interpreted that phrase as
follows:
By this amendment, Congress restored judicial
review of constitutional claims and questions of
law presented in petitions for review of final
removal orders. It did so by providing that nothing
in 8 U.S.C. § 1252(a)(2)(B), (C), or any other
provision of the INA shall preclude judicial review
of such orders, unless such review is barred by
some other provision of 8 U.S.C. § 1252. In short,
Congress repealed all jurisdictional bars to our
direct review of final removal orders other than
those remaining in 8 U.S.C. § 1252 (in provisions
other than (a)(2)(B) or (C)) following the
amendment of that section by the REAL ID Act.
Fernandez-Ruiz v. Gonzales, 410 F.3d 585, 587 (9th Cir.
2005), as adopted by 466 F.3d 1121, 1124 (9th Cir. 2006)
(en banc) (emphasis added).
MENDOZA-LINARES V. GARLAND 57
In other words, although the main aim of the statute is to
restore judicial review of certain claims, the parenthetical
phrase in subparagraph (D) recognizes that other parts of §
1252 preclude judicial review. As noted, § 1252(a)(2)(A)(i)
is just such a provision, barring judicial review here but for
the presumption that there must be a judicial forum for
constitutional claims unless Congress explicitly directs
otherwise. The parenthetical phrase does not change or
expand the reach of any extant bar to judicial review. 7 Nor
is it an explicit bar to review of constitutional claims in
subparagraph (A) for the reasons that I have explained.
b. Context
Context is key whenever we deduce meaning through
negative implication. As the Chief Justice wrote for the
Supreme Court in rejecting the interpretation of a statute
offered by the National Labor Relations Board:
The Board relies on the “interpretive canon,
expressio unius est exclusio alterius, ‘expressing
one item of [an] associated group or series excludes
another left unmentioned.’” Chevron U.S.A. Inc.
v. Echazabal, 536 U.S. 73, 80 (2002) (quoting
Vonn, 535 U.S. at 65). If a sign at the entrance to a
7
Our recent decision in Singh, 982 F.3d at 778, also supports this
reading. There, we considered our jurisdiction to review a non-
constitutional question of law. We concluded that “[s]ubparagraph (D)
does not refer to the non-reviewability provisions of [s]ubparagraph (A),
and it is that provision that deprives us of jurisdiction to review” the
question of law. Id. at 784. We explained that “[s]ubparagraphs (A),
(B), and (C) each establish separate and alternative prohibitions on
review of certain matters. . . . Subparagraph (D) . . . only overrides
prohibitions contained in (1) a provision of the INA other than § 1252,
or (2) either § 1252(a)(2)(B) or (C).” Id. (emphasis added). In other
words, subparagraph (D) does not pertain to or alter the bar to judicial
review contained in subparagraph (A).
58 MENDOZA-LINARES V. GARLAND
zoo says “come see the elephant, lion, hippo, and
giraffe,” and a temporary sign is added saying “the
giraffe is sick,” you would reasonably assume that
the others are in good health.
“The force of any negative implication,
however, depends on context.” Marx v. General
Revenue Corp., 568 U.S. 371, 381 (2013). The
expressio unius canon applies only when
“circumstances support[] a sensible inference that
the term left out must have been meant to be
excluded.” Echazabal, 536 U.S. at 81.
NLRB v. SW General, Inc., 137 S. Ct. 929, 940 (2017)
(Roberts, C.J.) (brackets in original) (internal citations
simplified) . The Court had explained the limits of the canon
further in Marx:
We have long held that the expressio unius canon
does not apply “unless it is fair to suppose that
Congress considered the unnamed possibility and
meant to say no to it,” Barnhart v. Peabody Coal
Co., 537 U.S. 149, 168 (2003), and that the canon
can be overcome by “contrary indications that
adopting a particular rule or statute was probably
not meant to signal any exclusion,” Vonn, 535 U.S.
at 65.
Marx, 568 U.S. at 381 (internal citations simplified); see also
Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts, 107–11 (2012) (discussing the
negative-implication canon); Longview Fibre Co. v.
Rasmussen, 980 F.2d 1307, 1312–13 (9th Cir. 1992)
(“Sometimes there is no negative pregnant: ‘get milk, bread,
peanut butter and eggs at the grocery’ probably does not
mean ‘do not get ice cream.’”).
MENDOZA-LINARES V. GARLAND 59
The surrounding structure of § 1252(a)(2) illustrates one
reason why it is unlikely that Congress “considered the
unnamed possibility and meant to say no to it.” Barnhart,
537 U.S. at 168. The text of subparagraph (A) does not
explicitly cross-reference subparagraph (D). For example,
no clause in (A) states that we lack jurisdiction “including
over claims restored under subparagraph (D).” But each of
the next two subparagraphs, (B) and (C), includes such an
explicit reference. Subparagraphs (B) and (C) specify that
we lack jurisdiction “except as provided in subparagraph
(D).” Id. § 1252(a)(2)(B), (C). In other words, Congress
deliberately made the linkages to new paragraph (D)
explicit, and the textual distinction suggests that Congress
intended paragraph (D) to bear only on paragraphs (B) and
(C).
Accordingly, even if a negative implication could, in
theory, constitute the explicit statement of intent that is
required, the text does not convey a clear intent. The explicit
reference to (D) in both (B) and (C), coupled with the
absence of any link in (A), reinforces that Congress may not
have intended to affect (A) at all. Indeed, an equally
reasonable interpretation of the omission is that Congress
saw no need to include (A) within subparagraph (D) because
it already was established, known, or obvious that
constitutional claims in situation (A)—unlike situations (B)
and (C)—could be reviewed by the court of appeals. Cf.
Marozsan, 852 F.2d at 1479 (“It is at least as likely that
Congress . . . assumed review of constitutional questions, as
it is that Congress sought to preclude such review
altogether.”). After all, the text of (D) aims to restore review,
not eliminate it.
60 MENDOZA-LINARES V. GARLAND
c. Statutory History
Subparagraph (D)’s statutory history confirms that it
does not constitute an explicit statement of intent to
foreclose review of constitutional claims. Congress enacted
the jurisdiction-stripping provisions of subparagraphs (A),
(B), and (C) in IIRIRA. But Congress enacted subparagraph
(D) almost ten years later, in Section 106 of the Emergency
Supplemental Appropriations Act for Defense, the Global
War On Terror, and Tsunami Relief Act of 2005, Pub. L. No.
109–13, 119 Stat 231.
Congress enacted subparagraph (D) with only one, very
specific goal in mind: to respond to the Supreme Court’s
decision in St. Cyr. See, e.g., Patel, 142 S. Ct. at 1623
(“Congress added this subparagraph [D] after we suggested
in St. Cyr that barring review of all legal questions in
removal cases could raise a constitutional concern.”). In St.
Cyr, the Court held that a prior version of section (a)(2)
would be constitutionally suspect if it were interpreted to
prohibit all forms of judicial review, including a petition for
habeas corpus. St. Cyr, 533 U.S. at 300. The Supreme Court
“interpreted that predecessor and the other purportedly
jurisdiction-stripping provisions as not barring (i.e., as
permitting) review in habeas corpus proceedings, to avoid
the serious constitutional questions that would be raised by
a contrary interpretation.” Guerrero-Lasprilla, 140 S. Ct. at
1071.
In doing so, the Court suggested that the Constitution, at
a minimum, protected the writ of habeas corpus “as it existed
in 1789,” which included a right to a judicial remedy for
“detentions based on errors of law, including the erroneous
application or interpretation of statutes.” St. Cyr, 533 U.S.
at 301–02. The Court, however, provided Congress with a
roadmap for overturning its decision: “Congress could,
MENDOZA-LINARES V. GARLAND 61
without raising any constitutional questions, provide an
adequate substitute [for habeas relief] through the courts of
appeals.” Id. at 314 n.38.
And Congress proceeded to do just that. “It made clear
that the limits on judicial review in various provisions of
§ 1252 included habeas review, and it consolidated virtually
all review of removal orders in one proceeding in the courts
of appeals.” Guerrero-Lasprilla, 140 S. Ct. at 1071. At the
same time, Congress also amended section (a)(2) by adding
subparagraph (D), which provided that none of the limits on
judicial review contained anywhere in Title 8 of the United
States Code prohibits review of constitutional claims or
other questions of law. Id. “While Congress could have
responded to St. Cyr by lifting § 1252’s prohibitions on
judicial review altogether, it instead excised only the legal
and constitutional questions that implicated [the Court’s]
concern[,]” namely orders related to criminal non-citizens
and orders related to discretionary relief. Patel, 142 S. Ct. at
1623. Subparagraph (A), which applied to expedited
removal orders, remained wholly irrelevant to that endeavor.
Cf. Singh, 982 F.3d at 784 (“By its own terms,
[s]ubparagraph (D) does not re-vest jurisdiction in our court
over legal questions whose review is prohibited by
[s]ubparagraph (A).”).
In short, “[t]his statutory history strongly suggests that
Congress added the words before us because it sought an
adequate substitute for habeas in view of St. Cyr’s
guidance.” Guerrero-Lasprilla, 140 S. Ct. at 1071–72
(emphasis added) (internal quotation marks omitted).
Subparagraph (D) aimed to cure the constitutional
deficiency, as applied to habeas relief, that the Supreme
Court had highlighted in its decision in St. Cyr. By
providing a judicial forum in the courts of appeals, Congress
channeled what formerly were habeas claims to us.
62 MENDOZA-LINARES V. GARLAND
d. Legislative History
As detailed by the Congressional Conference Report on
that 2005 bill—which expressed the official views of both
the House and the Senate—subparagraph (D) had a singular,
precise purpose: to “provide an ‘adequate and effective’
alternative to habeas corpus in the court of appeals.”
Guerrero-Lasprilla, 140 S. Ct. at 1072 (quoting H.R. Rep.
No. 109-72, at 175 (2005), reprinted in 2005 U.S.C.C.A.N.
240, 297–300. Congress did not intend subparagraph (D) to
eliminate judicial review in any way, a fortiori by removing
our ability to consider colorable constitutional claims. As
the Report explains:
[Section 106, codified as subparagraph (D)] does
not eliminate judicial review, but simply restores
such review to its former settled forum prior to
1996. Under section 106, all aliens who are ordered
removed by an immigration judge will be able to
appeal to the BIA and then raise constitutional and
legal challenges in the courts of appeals. No alien,
not even criminal aliens, will be deprived of
judicial review of such claims. Unlike AEDPA and
IIRIRA, which attempted to eliminate judicial
review of criminal aliens’ removal orders, section
106 would give every alien one day in the court of
appeals, satisfying constitutional concerns.
H.R. Rep. No. 109-72, at 174–75 (emphasis added); see also
Patel, 142 S. Ct. at 1626 (“The post-St. Cyr amendments
expressly extended the jurisdictional bar to judgments made
outside of removal proceedings at the same time that they
preserved review of legal and constitutional questions made
within removal proceedings.”).
MENDOZA-LINARES V. GARLAND 63
e. Conclusion
After full consideration of the statute’s text, context, and
history, I conclude that Congress did not intend for
subparagraph (D) to constitute an explicit provision
divesting us of all jurisdiction over colorable constitutional
claims. Because “[i]t is presumable that Congress legislates
with knowledge of [the Supreme Court’s] basic rules of
statutory construction,” McNary v. Haitian Refugee Ctr.,
Inc., 498 U.S. 479, 496 (1991), we must presume that
Congress would have used explicit text had it intended to
foreclose judicial review of colorable constitutional claims
in expedited removal cases. Because Congress has not done
so, we retain jurisdiction to consider Petitioner’s
constitutional claims.
I recognize the general policy concerns at the core of the
expedited removal statute, that is, that “the process . . . be
expedited.” Thuraissigiam, 140 S. Ct. at 1967. A layer of
review for constitutional claims may slow that process. But
“we inevitably swerve out of our lane when we put policy
considerations in the driver’s seat.” Patel, 142 S. Ct. at 1627.
In sum, because there is no other judicial forum for
constitutional challenges to expedited removal orders, and
because Congress has enacted no explicit provision
precluding judicial review of constitutional claims in that
context, we must apply the long-standing presumption that
colorable constitutional claims receive judicial review.
3. Petitioner Asserts a Constitutional Claim That Is
Colorable.
Finally, I turn to whether Petitioner’s constitutional
claim is “colorable.” We superimpose this requirement to
prevent a petitioner from creating jurisdiction “that Congress
64 MENDOZA-LINARES V. GARLAND
chose to remove simply by cloaking an abuse of discretion
argument in constitutional garb.” Torres–Aguilar v. INS,
246 F.3d 1267, 1271 (9th Cir. 2001). To be colorable, “the
alleged violation need not be substantial but the claim must
have some possible validity.” Id. (citations and internal
quotation marks omitted). Our analysis “must look beyond
the label.” Id.“Immigration proceedings, although not subject to the
full range of constitutional protections, must conform to the
Fifth Amendment’s requirement of due process.” Salgado-
Diaz v. Gonzales, 395 F.3d 1158, 1162 (9th Cir. 2005), as
amended (March 10, 2005). “[I]n the expedited removal
context, a petitioner’s due process rights are coextensive
with the statutory rights Congress provides.” Guerrier, 18
F.4th at 310. But we do not retain jurisdiction to review
every violation of a statutory right. For expedited removals,
a petitioner “has only those rights regarding admission that
Congress provided by statute[,]” namely, “the right to a
determination whether he had a significant possibility of
establishing eligibility for asylum[.]” Thuraissigiam, 140 S.
Ct. at 1983 (internal quotation marks omitted). If the
Petitioner “was given that right[,]” then “the Due Process
Clause provides nothing more, it does not require review of
that determination or how it was made.” Id.In Guerrier, we dismissed a petition even though it
asserted a colorable constitutional claim because the
petitioner challenged the details of how the determination
had been made. 18 F.4th at 312–13. Here, by contrast,
Petitioner asserts that he did not receive any determination
as contemplated by Congress. That assertion is not only
colorable, but meritorious, as discussed below. Thus,
Petitioner asserts the limited type of due process claim that
MENDOZA-LINARES V. GARLAND 65
we have jurisdiction to consider. 8 See Landon v. Plasencia,
459 U.S. 21, 34–35 (1982) (“The role of the judiciary is
limited to determining whether the procedures meet the
essential standard of fairness under the Due Process Clause
and does not extend to imposing procedures that merely
displace congressional choices of policy.”).
Accordingly, I turn now to the merits.
DUE PROCESS
As noted above, “in the expedited removal context, a
petitioner’s due process rights are coextensive with the
statutory rights Congress provides.” Guerrier, 18 F.4th at
310. For expedited removals, Congress provided the
following procedure by statute. An asylum officer, a
supervisor, and a reviewing IJ must determine whether a
non-citizen subject to expedited removal has a “credible fear
of persecution.” 8 U.S.C. § 1225(b)(1)(B)(ii)–(iii).
Congress defined that term to mean “a significant
possibility, taking into account the credibility of the
statements made by the [non-citizen] in support of the [non-
citizen’s] claim and such other facts as are known to the
officer, that the [non-citizen] could establish eligibility for
asylum under [§] 1158.” Id. § 1225 (b)(1)(B)(v).
Here, there is no question that the IJ’s decision did not
take into account the credibility of Petitioner’s statements or
8
Petitioner seeks review only of the IJ’s “denial of his asylum claim and
the resulting order of removal.” I therefore consider only Petitioner’s
asylum claim. To the extent that Petitioner challenges the determination
respecting his claims for withholding of removal and relief under the
Convention Against Torture (“CAT”), we lack jurisdiction. Guerrier, 18
F.4th at 313. The Transit Bar changed the criteria for withholding of
removal and CAT protection but did not preclude a determination, as it
did with respect to asylum. See 8 C.F.R. § 208.13(c)(4) (2020).
66 MENDOZA-LINARES V. GARLAND
any other facts known to the IJ that Petitioner could have
used to establish a “significant possibility” of demonstrating
eligibility for asylum. To the contrary, as shown below, the
IJ crossed out that part of the form. Instead, the decision
relied on the Transit Bar only:
MENDOZA-LINARES V. GARLAND 67
68 MENDOZA-LINARES V. GARLAND
Accordingly, unless the IJ’s reliance on the Transit Bar
constituted a sufficient “determination whether [Petitioner]
had a significant possibility of establishing eligibility for
asylum,” Thuraissigiam, 140 S. Ct. at 1983 (internal
quotation marks omitted), the IJ failed to undertake the
statutorily-required review of Petitioner’s claims.
As a matter of law, however, reliance on the Transit Bar
could not meet the statutory requirements. In general, any
action taken under an agency’s rule that has been vacated
due to the lack of proper notice and comment has no legal
force or effect. Paulsen v. Daniels, 413 F.3d 999, 1007–08
(9th Cir. 2005); W.C. v. Bowen, 807 F.2d 1502, 1505 (9th
Cir. 1987), as amended on denial of reh’g 819 F.2d 237 (9th
Cir. 1987); Buschmann v. Schweiker, 676 F.2d 352, 358 (9th
Cir. 1982); see also United States v. Goodner Bros. Aircraft,
Inc., 966 F.2d 380, 384 (8th Cir. 1992) (“A regulation not
promulgated pursuant to the proper notice and comment
procedures has no force or effect of law and therefore is void
ab initio.” (internal quotation marks omitted)). Here, on
June 30, 2020, a federal district court vacated the Transit Bar
for failure to follow the notice-and-comment procedures of
the APA. Cap. Area Immigrants’ Rts. Coal. v. Trump
(CAIR), 471 F. Supp. 3d 25, 57–58 (D.D.C. 2020), appeal
dismissed sub nom. No. 20-5271, 2022 WL 696459 (Feb.
24, 2022). 9 Although the district court’s order vacated the
rule one month after the May 28, 2020, decision by the IJ,
the IJ applied a rule that had no legal force or effect.
9
The government appealed the district court’s decision, but the United
States Court of Appeals for the District of Columbia Circuit dismissed
the appeal as moot when DHS issued a final rule—Asylum Eligibility
and Procedural Modifications, 85 Fed. Reg. 82,260 (Dec. 17, 2020)—
which became effective January 19, 2021.
MENDOZA-LINARES V. GARLAND 69
Accordingly, the IJ did not provide the Petitioner with a
“determination whether [Petitioner] had a significant
possibility of establishing eligibility for asylum.”
Thuraissigiam, 140 S. Ct. at 1983 (internal quotation marks
omitted). Because the complete absence of such a
determination violated Petitioner’s constitutional right to
due process, I would grant the petition and remand for
further proceedings. I therefore dissent.