Maria Santana Santana v. Eric Holder, Jr. , 585 F. App'x 418 ( 2014 )

FILED
NOT FOR PUBLICATION OCT 10 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT*
MARIA DE LOURDES SANTANA No. 12-70997
SANTANA, AKA Yecica Santana,
Agency No. A089-380-464
Petitioner,
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 6, 2014**
Seattle, Washington
Before: PAEZ, BYBEE, and CALLAHAN, Circuit Judges.
Petitioner-Appellant Maria De Lourdes Santana Santana (“Santana”) seeks
review of the Immigration Judge’s (“IJ’s”) and the Board of Immigration
Appeals’s (“BIA’s”) termination of her removal proceedings and the Department
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
of Homeland Security’s (“DHS’s”) March 30, 2012 reinstatement of her 2004
expedited removal order. She alleges that both resulted in violations of her due
process rights. We deny relief.1
We review questions of law de novo, including questions pertaining to the
violation of an alien’s due process rights and our own jurisdiction. Hamazaspyan
v. Holder, 590 F.3d 744, 747 (9th Cir. 2009); Luu-Le v. I.N.S., 224 F.3d 911, 914
(9th Cir. 2000).
1. Pursuant to 8 U.S.C. § 1252(a)(2)(D), this court does not have
jurisdiction to review Santana’s due process claims arising out of the BIA’s
decision affirming the termination of her formal removal proceedings. Although, §
1252 permits the court to review constitutional claims on a petition for review,
“‘[t]he carefully crafted congressional scheme governing review of decisions of the
BIA limits this court’s jurisdiction to the review of final orders of removal,’‘even
where a constitutional claim or question of law is raised.’” Ortiz-Alfaro v. Holder,
694 F.3d 955, 957 (9th Cir. 2012) (quoting Alcala v. Holder, 563 F.3d 1009, 1013,
1016 (9th Cir. 2009)). Santana seeks review of removal proceedings that the IJ
and BIA terminated; neither the IJ nor the BIA issued a final order of removal. In
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Because the parties are familiar with the facts and procedural history, we
do not restate them here except as necessary to explain our decision.
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the absence of a final order this court lacks jurisdiction to review Santana’s due
process claims arising out of her terminated removal proceedings. These claims
are therefore dismissed.
2. While this court has jurisdiction to review reinstated expedited removal
orders, Villa-Anguiano v. Holder, 727 F.3d 873, 875 (9th Cir. 2013), the court’s
review of such orders is “expressly limit[ed]. . . to habeas petitions alleging that the
petitioner is not an alien or was never subject to an expedited removal order.”
Morales-Izquierdo v. Gonzales, 486 F.3d 484, 498 (9th Cir. 2007) (en banc); see
also Garcia de Rincon v. Dep’t of Homeland Sec., 539 F.3d 1133, 1138–39 (9th
Cir. 2008) (referencing 8 U.S.C. § 1252(e)). Here, Santana does not deny her
alienage or her prior removal. Her allegations do not warrant a grant of relief.
3. Finally, Santana argues that the denial of counsel during the
reinstatement proceedings violated her due process rights. When a petitioner
claims a procedural due process violation, she “must present plausible scenarios in
which the outcome of the proceedings would have been different” had a more
“elaborate process” been provided. Morales-Izquierdo, 486 F.3d at 495 (internal
quotation marks omitted). Here, in the context of reinstatement proceedings, there
is no right to counsel before a DHS officer. Tawadrus v. Ashcroft, 364 F.3d 1099,
1103 (9th Cir. 2004); Moralez-Izquierdo, 486 F.3d at 497. Furthermore, Santana
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first raised her allegations of fear of returning to Mexico on appeal but proffered
no evidence of actual persecution to herself or her family. Santana failed to show
that her due process rights were violated or she was prejudiced.
The petition is DISMISSED in part and DENIED in part.
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