William Argueta Pena v. Loretta E. Lynch , 804 F.3d 1258 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM ARGUETA PENA, No. 12-72099
Petitioner,
Agency No.
v. A205-379-126
LORETTA E. LYNCH, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
August 26, 2014—Pasadena, California
Filed September 28, 2015
Before: Diarmuid F. O’Scannlain and Johnnie B.
Rawlinson, Circuit Judges and Sharon L. Gleason,* District
Judge.
Opinion by Judge Rawlinson
*
The Honorable Sharon L. Gleason, District Judge for the U.S. District
Court for the District of Alaska, sitting by designation.
2 PENA V. LYNCH
SUMMARY**
Immigration
The panel dismissed for lack of jurisdiction a petition for
review of a decision by an immigration judge affirming an
asylum officer’s negative credible fear determination in
expedited removal proceedings.
The panel held, pursuant to 8 U.S.C. § 1252(a)(2)(A), that
this court lacks jurisdiction to review an IJ’s negative credible
fear determination in expedited removal proceedings.
The panel rejected petitioner’s argument that the
jurisdiction-stripping provision unconstitutionally deprives
him of any forum in which to bring a procedural due process
challenge to the expedited removal proceedings, because
there exist exceptions to the restriction on judicial review,
including limited habeas proceedings to establish that an
individual is not an alien, is a permanent resident, is a refugee
or asylee, or was not the subject of an expedited removal
order, and an avenue in criminal reentry proceedings to
collaterally attack a prior removal order.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
PENA V. LYNCH 3
COUNSEL
Rex S. Heinke and Katharine J. Galston, Akin Gump Strauss
Hauer & Feld LLP, Los Angeles, California; Saurish
Bhattacharjee (argued), McDermott Will & Emery LLP, Los
Angeles, California, Pro Bono Amicus Curiae Counsel for
Petitioner.
Stuart F. Delery, Principal Deputy Assistant Attorney
General, Ernesto H. Molina, Jr., Assistant Director, Sabatino
F. Leo, Trial Attorney, and Tim Ramnitz (argued), United
States Department of Justice, Civil Division, Office of
Immigration Litigation, Washington, D.C., for Respondent.
OPINION
RAWLINSON, Circuit Judge:
William Argueta Pena (Pena), a native and citizen of El
Salvador, petitions for review of a decision by an immigration
judge affirming the decision of the asylum officer during
expedited removal proceedings. We dismiss the petition for
lack of jurisdiction.
I. BACKGROUND
In March, 2012, Pena entered the United States without
documentation by wading across the Rio Grande River in
Texas. Within days, the United States initiated expedited
removal proceedings.
During Pena’s initial interview with the border patrol
agent, he indicated that he came to the United States to live
4 PENA V. LYNCH
with his mother and to work. He answered that he did not
fear harm if returned to El Salvador. However, Pena
subsequently wrote a statement asserting that he was afraid of
returning to El Salvador and wished to seek asylum. As a
result, Pena was referred to an asylum officer, who conducted
a “credible fear interview.”1 Following the interview, the
asylum officer concluded that Pena had not shown a credible
fear of persecution, and that he was ineligible for asylum or
other relief.
Pena requested review of the asylum officer’s decision by
an Immigration Judge. In response, Pena was given a form
titled “Notice of Referral to Immigration Judge,” which was
read and explained to Pena in Spanish, and provided, in part:
You may be represented in this proceeding, at
no expense to the government, by an attorney
or other individual authorized and qualified to
represent persons before an Immigration
Court. If you wish to be so represented, your
attorney or representative should appear with
you at this hearing. . . .
Pena appeared without an attorney before the Immigration
Judge. At the outset of the hearing, the judge asked, “Now
initially I note that you are of course in court this morning by
yourself. Did you intend to have an attorney or anybody be
1
An alien in expedited removal proceedings is referred to an asylum
officer for a “credible fear interview” if he indicates to the border patrol
agent “an intention to apply for asylum” or “a fear of persecution.”
8 U.S.C. § 1225(b)(1)(A)(ii). If the alien demonstrates a “credible fear of
persecution” to the asylum officer, “the alien shall be detained for further
consideration of the application for asylum.” Id. at § 1225(b)(1)(B)(ii).
PENA V. LYNCH 5
present in court today to represent you or to help you?” Pena
responded, “No, no, that’s fine.” At the conclusion of the
hearing, the judge affirmed the determinations made by the
asylum officer, finding that Pena had not established a
credible fear of persecution on a protected ground. The judge
informed Pena that the decision was final and could not be
appealed.
Despite the judge’s advisal, Pena appealed to the Board
of Immigration Appeals. The Board dismissed the appeal for
lack of jurisdiction as provided in the governing regulation.
See 8 U.S.C. § 1225(b)(1)(C ) 2 ; 8 C.F.R.
2
8 U.S.C. § 1225(b)(1)(C) provides:
Except as provided in subparagraph (B)(iii)(III)
[hearing before Immigration Judge], a removal order
entered in accordance with subparagraph (A)(i)
[inadmissibility] or (B)(iii)(I) [lack of credible fear] is
not subject to administrative appeal, except that the
Attorney General shall provide by regulation for
prompt review of such an order under subparagraph
(A)(i) against an alien who claims under oath, or as
permitted under penalty of perjury under section 1746
of Title 28, after having been warned of the penalties
for falsely making such claim under such conditions, to
have been lawfully admitted for permanent residence,
to have been admitted as a refugee under section 1157
of this title, or to have been granted asylum under
section 1158 of this title.
6 PENA V. LYNCH
§ 1208.30(g)(2)(iv)(A).3 Pena filed a pro se Motion for Stay
of Removal and a timely Petition for Review with this court.4
II. STANDARDS OF REVIEW
We determine our own jurisdiction de novo. See Bolanos
v. Holder, 734 F.3d 875, 876 (9th Cir. 2013). We also review
constitutional claims de novo. See Coronado v. Holder,
759 F.3d 977, 982 (9th Cir. 2014), as amended.
III. DISCUSSION
Amicus contends that we have jurisdiction to consider this
petition because the jurisdiction-stripping provision in
8 U.S.C. § 1252(a)(2)(A) unconstitutionally deprives Pena of
any forum in which to bring his procedural due process
challenge to the expedited removal proceeding. Specifically,
Pena seeks to challenge his removal on the basis that the
judge’s failure to elicit a knowing and voluntary waiver of
3
8 C.F.R. § 1208.30(g)(2)(iv)(A) provides:
If the immigration judge concurs with the determination
of the asylum officer that the alien does not have a
credible fear of persecution or torture, the case shall be
returned to the Service for removal of the alien. . . . The
immigration judge’s decision is final and may not be
appealed.
4
After the Government filed its response to Pena’s pro se Informal
Brief, we appointed amicus curiae counsel (Amicus), who has ably
represented Pena before this court.
PENA V. LYNCH 7
Pena’s right to counsel violated his due process rights. But
we can’t get there from here because we lack jurisdiction.5
The Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (the statute) strictly cabins
judicial review of final orders of removal under 8 U.S.C.
§ 1225(b)(1). See 8 U.S.C. § 1252(a)(1), (2)(A). No court
may review a direct challenge to an expedited removal order,
with a few exceptions. See 8 U.S.C. § 1252(a)(2)(A)(i–iv)
(“[N]o court shall have jurisdiction to review . . . the
determination made under section 1225(b)(1)(B) of this title,
. . . except as provided in subsection (e) of this section . . .”);
see also 8 U.S.C. § 1225(b)(1)(B) (providing for interviews
of aliens by asylum officers and a determination of credible
fear of persecution as part of expedited removal proceedings).
One exception to the restriction on judicial review allows
for limited habeas corpus proceedings to establish that the
individual is not an alien, is a permanent resident, is a refugee
or asylee, or was not the subject of an expedited removal
order. See 8 U.S.C. § 1252(e)(2); see also Garcia de Rincon
v. Dep’t of Homeland Sec., 539 F.3d 1133, 1139 (9th Cir.
2008). Additionally, we have held that in criminal cases, a
“defendant charged [with criminal reentry] has a due process
right to collaterally attack his removal order because the
removal order serves as a predicate element of his
conviction.” United States v. Raya-Vaca, 771 F.3d 1195,
1201 (9th Cir. 2014) (citation and internal quotations
omitted). Pena’s “removal order was issued pursuant to
§ 1225(b)(1),” and none of these “strictly limited” exceptions
5
Because we resolve this case on the basis of our lack of jurisdiction,
we need not, and do not address the government’s argument premised on
our recent decision in Angov v. Lynch, 788 F.3d 893 (9th Cir. 2015).
8 PENA V. LYNCH
apply. Garcia de Rincon, 539 F.3d at 1139 (citation omitted).
Pena has not filed a habeas petition, and there has been no
criminal reentry case filed against him. Therefore, “we lack
jurisdiction to review any constitutional or statutory claims
related to the underlying removal order in this case” because
no claim listed in the statutory exceptions was raised. Id.
(citation omitted).
In Garcia de Rincon, we reiterated that we lack
jurisdiction to hear a collateral challenge like Pena’s to an
expedited removal order. We clarified that although 8 U.S.C.
§ 1252(a)(2)(D) “re-vests courts with jurisdiction to review
constitutional claims” (such as due process claims predicated
on right to counsel), that re-vestment does not extend to the
review of expedited removal orders. Id. at 1138. Rather,
§ 1252(a)(2)(A) “strictly circumscribes the scope of review
of expedited removal orders to the grounds enumerated in
§ 1252(e).” Id. (citations omitted) (emphasis added). In turn,
§ 1252(e) “only permits review of expedited removal orders
in a habeas corpus petition, and even then the review is
limited” to three inquiries: whether the petitioner is an alien,
was ordered removed under the expedited removal section, or
can prove lawful admission for permanent resident status. Id.
at 1138–39.
Our sister circuits have rejected the same argument made
by Pena. In Shunaula v. Holder, 732 F.3d 143 (2d Cir. 2013),
the petitioner attempted to enter the United States and was
removed via expedited removal pursuant to 8 U.S.C.
§ 1225(b)(1). See id. at 144–45. Four months later, the
petitioner entered the United States illegally and remained.
See id. at 145. After the government initiated removal
proceedings against him, the petitioner raised five specific
due process challenges to his initial expedited removal
PENA V. LYNCH 9
proceeding. See id. Shunaula argued that notwithstanding
the jurisdiction-stripping provisions of § 1252(a)(2)(A), due
process required that he be afforded an avenue for review of
the expedited removal order. See id. at 146. The Second
Circuit held that because the government was not seeking to
use the expedited removal as an element of a criminal
offense, but rather to establish inadmissibility, there was no
basis “to override the jurisdictional bar erected by
§ 1252(a)(2)(A) . . .” Id. at 147. The Second Circuit joined
every other circuit to have considered the issue and
determined that it did not have jurisdiction to entertain the
petitioner’s challenges to the expedited removal order. See
id.; see also Khan v. Holder, 608 F.3d 325, 329–30 (7th Cir.
2010); Lorenzo v. Mukasey, 508 F.3d 1278, 1281 (10th Cir.
2007).
Both the Supreme Court and this Circuit have suggested
that a litigant may be unconstitutionally denied a forum when
there is absolutely no avenue for judicial review of a claim of
constitutional deprivation. See Webster v. Doe, 486 U.S. 592,
603 (1988) (explaining that a “serious constitutional question
. . . would arise if a federal statute were construed to deny any
judicial forum for a colorable constitutional claim.”)
(emphasis added) (citation and internal quotation marks
omitted); see also Flores-Miramontes v. I.N.S., 212 F.3d
1133, 1136 (9th Cir. 2000) (holding that the petitioner’s
ability to petition for a writ of habeas corpus provides a
judicial forum to seek relief). Because the jurisdiction-
stripping provisions of the statute retain some avenues of
judicial review, limited though they may be, Pena has not
been unconstitutionally denied a judicial forum. See Flores-
Miramontes, 212 F.3d at 1136.
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IV. CONCLUSION
We lack jurisdiction to review Pena’s challenge to his
expedited removal proceedings in view of the jurisdiction-
stripping provisions of 8 U.S.C. § 1252(a)(2)(A). The statute
does not deprive Pena of any forum to challenge his
expedited removal proceedings. Although the available
avenues of review provide no relief for Pena in the
administrative context, the fact remains that avenues of
review exist, thereby defeating Pena’s claim of
unconstitutionality. See Flores-Miramontes, 212 F.3d at
1136.
PETITION FOR REVIEW DISMISSED.