Rangel-Perez v. Holder

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 29, 2013
Elisabeth A. Shumaker
Clerk of Court
FABIAN RANGEL-PEREZ,
Petitioner,
v. No. 12-9582
(Petition for Review)
ERIC H. HOLDER, JR., United States
Attorney General,
Respondent.
ORDER AND JUDGMENT*
Before TYMKOVICH, ANDERSON, and MATHESON, Circuit Judges.
Fabian Rangel-Perez, a citizen and national of Mexico, appeals the final
administrative removal order (FARO) issued by an official of the Department of
Homeland Security (DHS). The FARO was issued to Mr. Rangel as an alien without
lawful residency who had been convicted of an aggravated felony. See 8 U.S.C.
§ 1228(b). The Attorney General has filed a motion to remand the case to DHS for
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
further proceedings. Mr. Rangel opposes the motion. We grant the motion to
remand.
The Attorney General requests a remand in the interests of justice to allow
DHS “to reconsider its decision regarding removability and to proceed under
expedited removal procedures.” Aplee. Br. at 7. The Attorney General represents
that on remand, DHS will either “(1) issue a new expedited removal order pursuant to
8 U.S.C. § 1228; or (2) initiate removal proceedings before an immigration court
pursuant to 8 U.S.C. § 1229a.” Id. at 8.1
A remand “shows proper respect for agency decision making, enables the
[agency] to respond to emerging case law in the courts of appeals, and comports with
Supreme Court guidance.” Lin v. U.S. Dep’t of Justice, 473 F.3d 48, 54 (2d Cir.
2007) (per curiam) (citing Ren v. Gonzales, 440 F.3d 446, 448 (7th Cir. 2006) (in
turn citing Lawrence v. Chater, 516 U.S. 163, 165-74 (1996) (per curiam))).
Principles governing judicial review of administrative action generally permit the
court to “giv[e] an administrative body an opportunity to meet objections to its order
by correcting irregularities in procedure, or supplying deficiencies in its record, or
making additional findings where these are necessary, or supplying findings validly
made in the place of those attacked as invalid.” Ford Motor Co. v. NLRB, 305 U.S.
1Mr. Rangel argues that on remand DHS may deem him an alien for admission
who has not been continuously physically present in the United States for two years,
and order him removed without further hearing or review. Aplt. Reply Br. at 7
(citing 8 U.S.C. § 1225(b)(1)(A)(i), (iii)). But this procedure is not one of the two
options the Attorney General has represented he intends to pursue.
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364, 375 (1939). If the agency does not rule in his favor, Mr. Rangel may again seek
judicial review. Cf. Martinez-Marroquin v. Gonzales, 489 F.3d 778, 778 (6th Cir.
2007) (noting that in remanding to the Board of Immigration Appeals, “[a] remand
will not . . . result in the loss of the petitioner’s right to judicial review”). Mr. Rangel
“is cautioned that if the [agency] does not rule in his favor, a new timely petition for
review must be filed.” Id.
The motion for remand is granted.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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