Martinez-Merino v. Keisler ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RANULFO MARTINEZ-MERINO,  No. 05-74776
Petitioner,
Agency No.
v.
 A78-198-090
MICHAEL B. MUKASEY,* Attorney
ORDER AND
General,
OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
August 8, 2007—Anchorage, Alaska
Filed May 5, 2008
Before: J. Clifford Wallace, John T. Noonan, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Noonan
*Michael B. Mukasey is substituted for his predecessor, Peter D. Keis-
ler, as Attorney General of the United States, pursuant to Fed. R. App. P.
43(c)(2).
4915
MARTINEZ-MERINO v. KEISLER 4917
COUNSEL
Phillip J. Eide, Anchorage, Alaska, for the petitioner.
Edward J. Duffy, Washington, D.C., for the respondent.
ORDER
The opinion and concurrence filed October 10, 2007, are
WITHDRAWN.
OPINION
NOONAN, Circuit Judge:
In this converted petition for review of the order reinstating
his removal from the country, Ranulfo Martinez-Merino
(Martinez) challenges the validity of his underlying removal
proceedings. Holding that Martinez has not successfully
alleged the deprivation of any constitutional or statutory right
4918 MARTINEZ-MERINO v. KEISLER
to be free from the restraint imposed by the reinstatement
order, we deny his petition.
ALLEGATIONS AND PROCEEDINGS
In the absence of any evidentiary hearing in, or findings by,
the district court, we summarize only the allegations of the
petitioner and the procedural record.
Martinez is a native and citizen of Mexico and a member
of an indigenous minority group known as Triqui. His pri-
mary language is Triqui. He has a limited knowledge of Span-
ish.
Martinez entered the United States without inspection in
early 2002. He had left Mexico because his brother had been
killed by a guerrilla group that the government could not con-
trol, and he was afraid that the group would kill him. He was
arrested by the Immigration and Naturalization Service (the
INS). Granted voluntary departure, he departed for Mexico,
but returned to the United States in August 2002.
In December 2002, he was again apprehended by the INS.
He was given a form in Spanish headed “Notificación De
Derechos.” The form advised him of his right to a hearing
before an Immigration Judge; of his right to communicate
with counsel; of the opportunity to obtain from the INS a list
of asociaciones juridícas which would assist him gratuitously
or at little cost; of his right to communicate with the Mexican
consul; and of his right to use a telephone to call a lawyer or
the consul.
A second form “Solicitud De Resolucion” gave him three
options: (1) to ask for a hearing before an IJ so that he could
remain in the United States; (2) to state that he would be in
danger if returned to Mexico, a statement that the form said
would lead to a hearing before an IJ; or (3) to admit that he
was illegally in the United States and did not believe that he
MARTINEZ-MERINO v. KEISLER 4919
would be in danger if returned to his country. Under the third
option he also renounced his right to a hearing.
On December 9, 2002, Martinez signed the second form
checking off the third option. On December 9, 2002, he also
signed a form in English entitled “Stipulated Request for
Removal Order And Waiver of Hearing.” He waived his right
to apply for relief from removal and designated Mexico as his
country of choice for removal. This form also declared that he
had signed it voluntarily, knowingly, and intelligently. Also
signing the stipulation were an immigration officer and the
district counsel for the INS. On December 11, 2002, an IJ
ordered Martinez’s removal, and he was removed on Decem-
ber 17, 2002.
In April 2003, Martinez again entered the United States. He
was apprehended by the INS on December 5, 2003. On the
same day, he signed a form identifying himself as subject to
the deportation order of December 11, 2002 and acknowledg-
ing his illegal reentry on April 15, 2003. The form instructed
him that he could contest this determination by a written or
oral statement to an immigration judge. The form was trans-
lated into Spanish for him. He checked a box indicating that
he did not wish to make a statement, and he signed the form.
A “supervising special agent” then entered “Decision, Order,
and Officer’s Certification” determining that Martinez was
subject to removal.
Three days later, Martinez filed a petition with the district
court for a writ of habeas corpus. On February 20, 2004, the
district court dismissed the petitioner’s challenge to the
removal order of 2002. The district court transferred to this
court that part of the petition challenging the reinstatement
made in 2003. The district court ruled that Martinez could be
removed from the United States. He was removed in early
2004.
On November 15, 2004, this court granted Martinez’s
unopposed motion to remand the case for proceedings in the
4920 MARTINEZ-MERINO v. KEISLER
light of Arreola-Arreola v. Ashcroft, 383 F.3d 956 (9th Cir.
2004), overruled by Morales-Izquierdo v. Gonzales, 486 F.3d
484, 496 (9th Cir. 2007) (en banc).
On March 18, 2005, Martinez filed an amended petition for
a writ of habeas corpus. The district court scheduled a hearing
for September 6-7, 2005. The district court directed that Mar-
tinez be paroled into the community to aid in the preparation
of his case. Before the scheduled hearing could be held, how-
ever, the Real ID Act became law. Pursuant to
§ 106(a)(1)(B)(5), codified at 8 U.S.C. § 1252(a)(5), which
provided that “the sole and exclusive means for judicial
review of an order of removal” is the appropriate court of
appeals, the district court again transferred the case to this
court.
ANALYSIS
Martinez argues that the effect of the transfer to this court
is to deny him any opportunity to present his case. His case
depends on evidence, and our court does not take evidence.
The transfer, in effect, suspends the writ of habeas corpus
because there is no way for his case to be heard.
While this appeal was pending, the en banc court overruled
Arreola-Arreola and held that 8 U.S.C. § 1231(a)(5) pre-
cluded an alien petitioning for review of the reinstatement of
an order of deportation from seeking to reopen the underlying
removal order. Morales-Izquierdo, 486 F.3d at 496-97. Mora-
les was seeking to get behind the reinstatement order to attack
the removal order on the ground that he had not received
notice of the removal hearing. The en banc court ruled that
“the reinstatement statute specifically precludes Morales from
seeking to reopen the previous removal order based on defec-
tive service or any other grounds. . . . Because none of the
grounds Morales raises would have been a proper basis for
relief during the reinstatement process, he suffered no preju-
MARTINEZ-MERINO v. KEISLER 4921
dice by being denied access to an official who could adjudi-
cate facts that might support these claims.” Id. at 496.
The court further reasoned that § 1231(a)(5) “provided suf-
ficient procedural safeguards to withstand a facial challenge
for facial insufficiency,” but acknowledged that individual
petitioners might raise procedural defects in particular cases
and considered the merits of Morales’ claims. Id. at 495-96.
The court concluded that even Morales’ constitutional chal-
lenge to his underlying removal claim was not enough to
invalidate the reinstatement order because “[r]einstatement of
a prior removal order—regardless of the process afforded in
the underlying order—does not offend due process because
reinstatement of a prior order does not change the alien’s
rights or remedies.” Id. at 497. Importantly, the reinstatement
order “imposes no civil or criminal penalties, creates no new
obstacles to attacking the validity of the removal order, and
does not diminish petitioner’s access to whatever path for
lawful entry might otherwise be available to him under the
immigration laws.” Id. at 498.
Morales-Izquierdo did not consider or address the effect of
8 U.S.C. § 1252(a)(2)(D), which prevents other statutory pro-
visions in the Immigration and Nationality Act from being
construed to preclude review over “constitutional claims or
questions of law.” Id. All other circuits that have considered
§ 1252(a)(2)(D) in conjunction with § 1231(a)(5) have con-
cluded that § 1252(a)(2)(D) vests circuit courts with the abil-
ity to review reinstated removal orders. See Lorenzo v.
Mukasey, 508 F.3d 1278, 1282 (10th Cir. 2007); Debeato v.
Mukasey, 505 F.3d 231, 235 (3d Cir. 2007); Ramirez-Molina
v. Ziglar, 436 F.3d 508, 513-14 (5th Cir. 2006). Because we
ultimately conclude that Martinez-Merino has not shown that
he suffered a “gross miscarriage of justice,” we do not decide
today the precise effect of § 1252(a)(2)(D) on our review of
reinstated removal orders.
[1] Morales-Izquierdo cuts out the feet of Martinez’s argu-
ment. He was disabled by § 1231(a)(5) from attacking the
4922 MARTINEZ-MERINO v. KEISLER
reinstatement order by attempting to show that he had
received inadequate notice of his rights in the removal pro-
ceeding. Like Morales, Martinez suffered no prejudice in
being subjected to the summary process provided an alien
who returns illegally after removal.
Dissenting in Morales-Izquierdo, Judge Thomas pointed
out that the decision raised “serious Suspension Clause con-
cerns.” Id. at 508. After all, the great writ “shall not be sus-
pended unless when in Cases of Rebellion or Invasion the
public safety may require it.” U.S. Const. art. I, § 9, cl. 2.
Obviously neither rebellion or invasion are relevant to this
case. Is habeas unconstitutionally suspended? Where evidence
is necessary to make a case for issuance of the writ, the practi-
cal effect of the statute is to forestall the case.
[2] The difficulty with this argument is that the statutory
impact on the writ causes no prejudice to Martinez. If he
could get an evidentiary hearing and if he could prove that he
was not advised of his rights because he understood neither
English nor Spanish, how would such proof advance his
cause? Morales-Izquierdo holds that he cannot challenge the
order of reinstatement by establishing a procedural defect of
this kind in the underlying order of removal. Habeas review
of the reinstatement order would provide no remedy for Mar-
tinez because he does not allege any constitutional infirmity
in the reinstatement procedure he received. See Morales-
Izquierdo, 486 F.3d at 497-98.
Martinez-Merino himself characterizes the provisions of
the Real ID Act as a suspension of the great writ because
Martinez-Merino cannot prove his case without submitting
evidence, and, he asserts, “the Court of Appeals cannot con-
duct evidentiary hearings.”
The accuracy of the latter assertion is doubtful: in appropri-
ate circumstances we have taken evidence. But his assertion
here is irrelevant. We need not decide whether the great writ
MARTINEZ-MERINO v. KEISLER 4923
was suspended. In an abundance of caution, we assume, with-
out deciding, that Martinez-Merino may still pursue his
habeas claim in this court to which habeas claims have been
transferred. We accept without evidence his claim that he was
not advised of his procedural rights in the reinstatement hear-
ing. He has not shown a “gross miscarriage of justice.”
Ramirez-Juarez v. INS, 633 F.2d 174, 175-76 (9th Cir. 1980).
He is not entitled to relief.
Accordingly, the petition is DENIED.