Hever Mendoza Linares v. Merrick Garland ( 2023 )

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.
ORDER
MERRICK B. GARLAND, Attorney
General,
Respondent.
Filed July 5, 2023
Before: Susan P. Graber and Daniel P. Collins, Circuit
Judges, and Jennifer Choe-Groves, * Judge.
Order;
Concurrence by Judge Collins;
Statement by Judge Berzon
*
The Honorable Jennifer Choe-Groves, Judge for the United States
Court of International Trade, sitting by designation.
2 MENDOZA-LINARES V. GARLAND
SUMMARY **
Immigration
The panel denied a petition for rehearing en banc after a
request for a vote on whether to rehear the matter en banc,
and the matter failed to receive a majority of the votes of the
nonrecused active judges in favor of en banc consideration,
in a case in which the panel held that: (1) subject only to a
very limited form of habeas corpus review that is
inapplicable in this case, § 242 of the Immigration and
Nationality Act (“INA”), see 8 U.S.C. § 1252, “clearly and
unambiguously” precludes judicial review of expedited
removal orders, even with regard to constitutional challenges
to such orders; and (2) as applied in this case—which
involved an arriving alien with no previous ties to the United
States—that denial of all judicial review was constitutional.
Concurring in the denial of rehearing en banc, Judge
Collins wrote briefly only to respond to certain points made
in the Statement disagreeing with the court’s decision not to
rehear this case en banc.
Judge Collins explained that in examining the structure
of the expedited removal system, the panel majority properly
focused on the only class of aliens whom Congress itself
automatically subjected to that system, namely, aliens
“arriving in the United States.” Judge Collins wrote that the
Attorney General’s decision, under INA
§ 235(b)(1)(A)(iii)(I), to extend the expedited removal
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MENDOZA-LINARES V. GARLAND 3
system—with its lack of judicial review—to additional
aliens (i.e., beyond arriving aliens) may raise different
constitutional questions. But the fact that such extensions
are authorized (within limits) under the statute and may raise
distinct constitutional issues provides no basis for failing to
acknowledge the statute’s unambiguous denial of judicial
review of expedited removal orders. As the Supreme Court
has stated, and the panel majority noted, courts cannot press
statutory construction to the point of disingenuous evasion
even to avoid a constitutional question. Where, as here,
Congress has clearly and comprehensively sought to bar
judicial review, its intent must be respected even if a difficult
constitutional question is presented.
Judge Collins noted that the Statement argues that if and
when the court is presented with a purported petition for
review of an expedited removal order involving a non-
arriving alien, it will be constrained to find the statute
unconstitutional as applied in such cases. Judge Collins
wrote that because that issue was not before the panel and
was not decided by it, it remains open for another case and
another day.
In a Statement respecting the denial of rehearing en banc,
Judge Berzon, joined by Chief Judge Murguia and Judges
Graber, Wardlaw, W. Fletcher, Gould, Paez, Christen, Koh,
Sung, Sanchez, Mendoza, and Desai, agreed with Judge
Graber’s comprehensive dissent as to why the panel’s
statutory construction is improper in light of the
constitutional avoidance principle of statutory
construction. Judge Berzon also agreed that arriving aliens
have some due process rights. Judge Berzon wrote only to
underscore the panel majority’s fundamental
misunderstanding of who can be subject to expedited
removal, an error that entirely undermines the opinion’s
4 MENDOZA-LINARES V. GARLAND
statutory interpretation and will guarantee the statute’s
unconstitutional application to a large group of
noncitizens.
Judge Berzon explained that the majority’s conclusion
that no unconstitutional application will result from its
interpretation of 8 U.S.C. § 1252 turns a blind eye to the legal
and practical actual reach of the expedited removal statute.
The expedited removal statute must be applied to noncitizens
“who [are] arriving” and can be applied to any other
noncitizen who has not been “physically present in the
United States continuously for the 2-year period
immediately prior” to a determination of inadmissibility. 8
U.S.C. § 1225(b)(1)(i), (iii)(II). The majority’s statutory
construction nonetheless rests at several junctures on
Congress’s purported awareness that expedited removal
proceedings apply only to arriving noncitizens, whom the
majority concludes wrongly, possess no constitutional
rights. Judge Berzon wrote that once that error is corrected,
it becomes apparent that the majority opinion’s twin
premises—that the constitutional avoidance principle does
not apply, and that Congress crafted the statute on the
understanding that the noncitizens affected had no rights to
due process under the federal Constitution—cannot stand.
And without those premises, the majority’s interpretation of
the INA’s expedited removal judicial review provisions as
banning all review of constitutional claims collapses as well.
MENDOZA-LINARES V. GARLAND 5
ORDER
The full court was advised of the petition for rehearing
en banc. A judge requested a vote on whether to rehear the
matter en banc, and the matter failed to receive a majority of
the votes of the nonrecused active judges in favor of en banc
consideration. See FED. R. APP. P. 35(a).
The petition for rehearing en banc is DENIED.
COLLINS, Circuit Judge, concurring in the denial of
rehearing en banc:
As the author of the majority opinion for the panel in this
case, I unsurprisingly concur in the denial of rehearing en
banc. The panel majority’s opinion exhaustively explains
that: (1) subject only to a very limited form of habeas corpus
review that is inapplicable here, § 242 of the Immigration
and Nationality Act (“INA”), see 8 U.S.C. § 1252, “clearly
and unambiguously” precludes judicial review of expedited
removal orders, “even with regard to constitutional
challenges to such orders,” Mendoza-Linares v. Garland, 51
F.4th 1146, 1149 (9th Cir. 2022); and (2) “as applied in this
case”—which involves an arriving alien with “no previous
ties to the United States”—that “den[ial] [of] all judicial
review” is constitutional, see id. at 1148, 1167. I write
briefly only to respond to certain points made in the
Statement joined by several of my colleagues disagreeing
with our court’s decision not to rehear this case en banc.
As the majority opinion correctly notes, the expedited
removal system established in § 235(b) of the INA, see
8 U.S.C. § 1225(b), is “generally applicable only to an alien
6 MENDOZA-LINARES V. GARLAND
‘who is arriving in the United States.’” See Mendoza-
Linares, 51 F.4th at 1164 (quoting 8 U.S.C. §§
1225(b)(1)(A)(i)). The Statement notes that, under
§ 235(b)(1)(A)(iii)(I), the “Attorney General” may choose to
extend the expedited removal system to certain additional
aliens, beyond those who are arriving in the United States.1
See 8 U.S.C. § 1225(b)(1)(A)(iii)(I). Specifically, the
Attorney General may designate for processing in § 235(b)’s
expedited removal system “any or all” of the following
additional aliens:
[A]n alien who is not described in
subparagraph (F), who has not been admitted
or paroled into the United States, and who has
not affirmatively shown, to the satisfaction of
an immigration officer, that the alien has been
physically present in the United States
continuously for the 2-year period
immediately prior to the date of the
determination of inadmissibility under this
subparagraph.
Id. § 1225(b)(1)(A)(iii)(II); see also id. § 1225(b)(1)(F)
(excluding from eligibility for expedited removal “an alien
who is a native or citizen of a country in the Western
Hemisphere with whose government the United States does
1
As noted in the panel opinion, because the relevant authorities
conferred on the Attorney General in the INA are in some instances now
exercised by the Secretary of Homeland Security, the statutory reference
to the “Attorney General” must be understood as referring, as
appropriate, to the Secretary. See Mendoza-Linares, 51 F.4th at 1154 n.6
(citing 6 U.S.C. § 557). My references to the “Attorney General” should
be understood in the same way.
MENDOZA-LINARES V. GARLAND 7
not have full diplomatic relations and who arrives by aircraft
at a port of entry”). The Statement notes that, to varying
degrees over time, the Attorney General has since 2002
affirmatively invoked this authority to make some or all
members of this additional class of aliens subject to
expedited removal. Against this backdrop, the Statement
contends that (1) the additional aliens who are covered by
such extensions of the expedited removal system include
many who would have sufficient ties to the United States to
give them due process rights with respect to their removal;
and (2) to avoid the substantial constitutional question
presented by the denial of judicial review of constitutional
claims as to that set of aliens, § 242 must be construed as
generally authorizing judicial review of constitutional
questions in expedited removal cases. But even assuming
arguendo that the Statement’s first premise is correct, its
second premise is plainly wrong.
The panel majority’s opinion painstakingly explains why
the only reasonable reading of the statutory text is that,
except for a very limited habeas corpus review, judicial
review of expedited removal orders is barred, even with
respect to constitutional claims. See Mendoza-Linares, 51
F.4th at 1153–66. Moreover, in examining the structure of
the expedited removal system, the panel majority properly
focused on the only class of aliens whom Congress itself
automatically subjected to that system, namely, aliens
“arriving in the United States.” 8 U.S.C. §§
1225(b)(1)(A)(i). That is “precisely the situation in which a
denial of judicial review is least likely to present
constitutional difficulties,” because “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
8 MENDOZA-LINARES V. GARLAND
aliens is a sovereign prerogative.’” Mendoza-Linares, 51
F.4th at 1164 (citation and emphasis omitted). And that
explains why, when Congress added § 242(a)(2)(D)
“specifically demarcating which provisions of the INA are
to be construed as preserving review of constitutional claims
and questions of law,” it “expressly carved out” the
provision generally barring judicial review of expedited
removal orders (which is § 242(a)(2)(A)). Id. at 1163.
The Attorney General’s decision to extend the expedited
removal system—with its lack of judicial review—to
additional aliens (i.e., beyond arriving aliens) may raise
different constitutional questions. But the fact that such
extensions are authorized (within limits) under the statute
and may raise distinct constitutional issues provides no basis
for failing to acknowledge the statute’s unambiguous denial
of judicial review of expedited removal orders. As the
Supreme Court has stated, and the panel majority noted,
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); see also
Mendoza-Linares, 51 F.4th at 1162. Where, as here,
Congress has clearly and comprehensively sought to bar
judicial review, “its intent must be respected even if a
difficult constitutional question is presented.” Boumediene
v. Bush, 553 U.S. 723, 738 (2008). Indeed, Congress’s
explicit decision to punt to the Attorney General the decision
as to whether to extend the expedited removal system
bespeaks some hesitation on its part as to whether that
system may properly be extended beyond arriving aliens. If
anything, Congress’s decision, effectively, to leave it to the
Attorney General to assess the constitutional implications of
any such extension before actually invoking it only
MENDOZA-LINARES V. GARLAND 9
underscores Congress’s clear intention to press the limits of
the Constitution in this area.
The Statement argues that, if and when we are presented
with a purported petition for review of an expedited removal
order involving a non-arriving alien, we will be constrained
to find the statute unconstitutional as applied in such cases.
That issue was not before the panel and was not decided by
it. That question remains open for another case and another
day.
BERZON, Circuit Judge, with whom MURGUIA,
GRABER, WARDLAW, FLETCHER, GOULD, PAEZ,
CHRISTEN, KOH, SUNG, SANCHEZ, MENDOZA, and
DESAI, Circuit Judges, join, respecting the denial of
rehearing en banc:
The majority opinion in this case interprets section 1252
of the Immigration and Nationality Act (“INA”) as
precluding judicial review of colorable constitutional
violations that occur in the course of removing noncitizens
covered by the INA’s expedited removal system. Mendoza-
Linares v. Garland, 51 F.4th 1146, 1160 (9th Cir. 2022). I
agree with the comprehensive dissent as to why the panel’s
statutory construction is improper in light of the
constitutional avoidance principle of statutory construction.
See id. at 1179 (Graber, J., dissenting). I also agree with the
dissent that arriving aliens have some due process rights. See
id. at 1179–80. I write only to underscore the panel
majority’s fundamental misunderstanding of who can be
subject to expedited removal, an error that entirely
undermines the opinion’s statutory interpretation and will
10 MENDOZA-LINARES V. GARLAND
guarantee the statute’s unconstitutional application to a large
group of noncitizens.
The majority’s conclusion that no unconstitutional
application will result from its interpretation of 8 U.S.C. §
1252 turns a blind eye to the legal and practical actual reach
of the expedited removal statute. The expedited removal
statute must be applied to noncitizens “who [are] arriving”
and can be applied to any other noncitizen who has not been
“physically present in the United States continuously for the
2-year period immediately prior” to a determination of
inadmissibility. 8 U.S.C. § 1225(b)(1)(i), (iii)(II). As early
as 2002, the government has applied expedited removal
proceedings to physically present noncitizens. See Notice
Designating Aliens Subject to Expedited Removal Under
Section 235(b)(1)(A)(iii) of the Immigration and Nationality
Act, 67 Fed. Reg. 68,924 (Nov. 13, 2002).
The majority’s statutory construction nonetheless rests at
several junctures on Congress’s purported awareness that
expedited removal proceedings apply only to arriving
noncitizens, whom the majority concludes (wrongly, as the
panel dissent explains, see Mendoza-Linares, 54 F.4th at
1179–80) possess no constitutional rights. Id. at 1149, 1164.
Once that error is corrected, it becomes apparent that the
majority opinion’s twin premises—that the constitutional
avoidance principle does not apply, see id. at 1160, and that
Congress crafted the statute on the understanding that the
noncitizens affected had no rights to due process under the
federal Constitution, see id. at 1164—cannot stand. And
without those premises, the majority’s interpretation of the
INA’s expedited removal judicial review provisions as
banning all review of constitutional claims collapses as well.
MENDOZA-LINARES V. GARLAND 11
1. The majority opinion both (1) defends its purported
plain text reading of the statute and (2) denies that a clear
statement test is required to avoid constitutional concerns by
relying on the erroneous notion that expedited removal is
“generally applicable only to an alien ‘who is arriving to the
United States,’” whom the majority (incorrectly) concludes
has no constitutional due process rights. Mendoza-Linares,
51 F.4th at 1164 (quoting 8 U.S.C. § 1225(b)(1)(A)(i)).
Here is how the maneuver takes place:
First, the Mendoza-Linares majority interprets
Congress’s passage of the REAL ID Act of 2005, enacting
section 1252(a)(2)(D), as evidence that Congress clearly
intended to preclude review of constitutional claims relating
to expedited removal. 51 F.4th at 1161. Rejecting the
dissent’s suggestion that Congress did not list section
1252(a)(2)(A) in the enumerated list of subsections not
precluding review of constitutional claims because Congress
understood colorable constitutional claims under
subparagraph A would be reviewable, see Mendoza-Linares,
51 F.4th at 1177 (Graber, J., dissenting), the majority asserts
that that subparagraph “addresses only expedited removal
orders under [section 1225(b)(1)], which are generally
applicable only to an alien ‘who is arriving in the United
States,’” and so (in the majority’s view) lacks any
constitutional rights. Id. at 1164 (citations omitted). The
majority repeats: “[W]hat 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” because it applies to noncitizens
who “have no constitutional rights concerning their
applications.” Id.
12 MENDOZA-LINARES V. GARLAND
The majority next maintains that a clear statement of
intent to preclude judicial review of constitutional claims is
not required because—once again—the noncitizens affected
by the statute do not have constitutional rights. “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 . . . . But that 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.” Id.
(emphasis added) (citations and internal quotation marks
omitted).
The majority’s premise is wrong. The expedited
removal statute does not apply only to “arriving”
noncitizens. The statute requires expedited removal of
inadmissible noncitizens “who [are] arriving in the United
States.” 8 U.S.C. § 1225(b)(1)(A)(i). But the statute
expressly authorizes expedited removal for noncitizens who
are not arriving, but have simply “not been admitted or
paroled into the United States, and who [have] not
affirmatively shown” that they have “been physically
present in the United States continuously for the 2-year
period immediately prior to the date of the determination of
inadmissibility under this subparagraph.” 8 U.S.C. §
1225(b)(1)(A)(iii)(I)-(II). In other words, the expedited
removal statute explicitly contemplates the application of
expedited removal proceedings to all noncitizens except
those who can demonstrate continuous presence in the
United States for the two years prior to their inadmissibility
determination. See id.MENDOZA-LINARES V. GARLAND 13
Nor has this authorization gathered dust in the United
States Code. As early as 2002, the Attorney General directed
expedited removal of certain noncitizens who had entered
the country and resided here for up to two years. See Notice
Designating Aliens Subject to Expedited Removal Under
Section 235(b)(1)(A)(iii) of the Immigration and Nationality
Act, 67 Fed. Reg. 68,924 (Nov. 13, 2002) (authorizing the
application of expedited removal to individuals who arrive
by sea and cannot demonstrate continuous presence in the
United States for two years); see also Designating Aliens For
Expedited Removal, 69 Fed. Reg. 48,877 (Aug. 11, 2004)
(authorizing the application of expedited removal to
inadmissible individuals apprehended within 100 miles of
the border within 14 days of entry). Moreover, from the
summer of 2019 to March 2022, the government applied
expedited removal to individuals found anywhere in the
United States who could not demonstrate they had been in
the country for two years. See Designating Aliens for
Expedited Removal, 84 Fed. Reg. 35,409 (July 23, 2019);
Rescission of the Notice of July 23, 2019, Designating
Aliens for Expedited Removal, 87 Fed. Reg. 16,022 (Mar.
21, 2022). Thus, for more than two decades, many
individuals who have been present in the United States for
up to two years have been subject to expedited removal.
2. The great majority of those individuals indisputably
possess full due process rights under the federal
Constitution. Department of Homeland Security v.
Thuraissigiam reaffirmed that “aliens who have established
connections in this country have due process rights in
deportation proceedings.” 140 S. Ct. 1959, 1963–64 (2020);
see also Hernandez v. Sessions, 872 F.3d 976, 983–84, 990
(9th Cir. 2017) (holding that noncitizen who resided in Los
Angeles for years without having been lawfully admitted or
14 MENDOZA-LINARES V. GARLAND
paroled was entitled to due process rights beyond what was
required by statute). In Yamataya v. Fisher, the Supreme
Court recognized the unqualified due process rights of a
noncitizen apprehended by immigration authorities four
days after coming to the country. 189 U.S. 86, 87, 100–01
(1903).
Although the majority opinion never addresses the
application of expedited removal to noncitizens who are not
arriving, its interpretation of 8 U.S.C. § 1252 deprives
everyone in expedited removal proceedings of judicial
review of colorable constitutional claims, raising grave
constitutional difficulties. See Webster v. Doe, 486 U.S. 592,
603 (1988). This head-in-the-sand approach to constitutional
avoidance cannot be reconciled with Clark v. Martinez, 543
U.S. 371, 380–81 (2005). Clark held that the clear statement
rule of constitutional avoidance derived from Webster, 486
U.S. at 603, and similar cases, see Mendoza-Linares, 51
F.4th at 1169–70 (Graber, J., dissenting) (collecting cases),
requires courts to consider the “necessary consequences” of
its statutory interpretation for noncitizens affected by the
statute but not presently before the court. Id. at 380.
Because the panel majority did not follow this precept,
as matters now stand this Court, when the issue arises—as it
inevitably will—will be constrained to declare the judicial
review provisions (as interpreted by the panel majority)
unconstitutional as applied to noncitizens who have not just
arrived. The option of construing the statute to avoid that
result—as the constitutional avoidance doctrine requires and
as Judge Graber’s dissent demonstrates is quite feasible—
will have gone by the wayside. The meaning of a statute’s
generally applicable language cannot vary depending on
which people covered by it are affected. “To give [a
statute’s] words a different meaning for each category [of
MENDOZA-LINARES V. GARLAND 15
alien] would be to invent a statute rather than interpret one.”
Clark, 543 U.S. at 722–23.
For this pivotal reason, as well as all those surveyed in
the panel dissent, I respectfully disagree with this Court’s
refusal to reconsider the panel opinion en banc.