Morales-Izquierdo v. Gonzales

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAUL MORALES-IZQUIERDO,  No. 03-70674
Petitioner, INS No.
v.
 A79-166-816
ALBERTO R. GONZALES, Attorney ORDER AND
General, AMENDED
Respondent.
 OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
December 13, 2005—Portland, Oregon
Proceedings Stayed January 5, 2006
Resubmitted June 22, 2006
Filed February 6, 2007
Amended May 8, 2007
Before: Mary M. Schroeder, Chief Judge, Harry Pregerson,
Stephen Reinhardt, Alex Kozinski, Pamela Ann Rymer,
Michael Daly Hawkins, Sidney R. Thomas, Susan P. Graber,
William A. Fletcher, Ronald M. Gould and Jay S. Bybee,
Circuit Judges.
Opinion by Judge Kozinski;
Dissent by Judge Thomas
5267
MORALES-IZQUIERDO v. GONZALES 5271
COUNSEL
Robert Pauw, Gibbs Houston Pauw, Seattle, Washington, for
the petitioner.
5272 MORALES-IZQUIERDO v. GONZALES
Peter D. Keisler, Assistant Attorney General, Civil Division;
Jonathan F. Cohn, Deputy Assistant Attorney General; Don-
ald E. Keener, Deputy Director, Office of Immigration Litiga-
tion; John Andre, Senior Litigation Counsel, Office of
Immigration Litigation, Civil Division, Washington, D.C., for
the respondent.
Trina A. Realmuto and Nadine K. Wettstein, American Immi-
gration Law Foundation, Washington, D.C., as amici curiae in
support of the petitioner.
ORDER
The petition for panel rehearing is denied. See Fed. R. App.
P. 40. Judges Pregerson, Reinhardt, Thomas and W. Fletcher
would grant the petition. The opinion filed on February 6,
2007, slip op. at 1389, is amended as follows:
Delete and footnote 15, id. at 1408-09.
Delete , id. at 1412.
OPINION
KOZINSKI, Circuit Judge:
When an alien subject to removal leaves the country, the
removal order is deemed to be executed. If the alien reenters
the country illegally, the order may not be executed against
him again unless it has been “reinstated” by an authorized offi-
cial.1 Until 1997, removal orders could only be reinstated by
1
Why this is so is not clear, and neither party explains it. It’s certainly
possible to conceive of a system where a removal order remains in force
MORALES-IZQUIERDO v. GONZALES 5273
immigration judges. That year, the Attorney General changed
the applicable regulation to delegate this authority, in most
cases, to immigration officers. We consider whether this
change in regulation is valid.
I
Morales-Izquierdo, a native and citizen of Mexico, was
arrested in 1994 for entering the United States without inspec-
tion. He was released and served with a mail-out order to
show cause.2 Eventually, a removal hearing was scheduled,
and Morales was notified via certified mail of the time and
place of the hearing. When Morales failed to attend the hear-
ing, he was ordered removed in absentia.3 Morales claims he
never received notice of the hearing date, but the record
permanently and may be re-executed whenever the alien is found to have
reentered the country illegally. As Judge Fernandez has noted, “there is
nothing unusual about allowing multiple executions on a judgment until
the full relief under it has been obtained.” Castro-Cortez v. INS, 239 F.3d
1037, 1055 (9th Cir. 2001) (Fernandez, J., dissenting), abrogated by
Fernandez-Vargas v. Gonzales, 126 S. Ct. 2422, 2427 & n.5 (2006). That,
however, does not appear to be the way our immigration law has devel-
oped.
2
When an alien is apprehended for an immigration violation, the immi-
gration officer typically serves the alien with what is known as a mail-out
order to show cause. What this means is that the alien is handed the order
upon submitting an address of record. This order explains why the alien
is in proceedings and under what legal authority, and it provides the
address of the Immigration Court. 8 C.F.R. § 1003.15. The order also
states that an alien must advise that court of any change in address, and
that failure to provide such information may result in an in absentia hear-
ing. Id. It’s called a “mail-out” order because notice of the hearing date
is subsequently mailed out to the alien’s address of record.
3
Morales’ 1994 removal order was actually a “deportation” order,
though the difference is of no legal consequence. The Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No.
104-208, div. C, 110 Stat. 3009-546, replaced all references to “deporta-
tion” with “removal.” See Gerald L. Neuman, Habeas Corpus, Executive
Detention, and the Removal of Aliens, 98 Colum. L. Rev. 961, 966 (1998)
(“IIRIRA realigned the vocabulary of immigration law, creating a new
category of ‘removal’ proceedings that largely replaces what were for-
merly exclusion proceedings and deportation proceedings . . . .”). To avoid
more confusion than necessary, we use the term “removal,” even when
referring to a pre-1996 “deportation.”
5274 MORALES-IZQUIERDO v. GONZALES
shows that the notice was mailed to his address of record, and
the Immigration and Naturalization Service (INS) received a
return receipt bearing the signature “Raul Morales.”
A warrant of removal was issued, and the INS apprehended
and removed Morales from the United States in 1998.4 He
attempted to reenter illegally in January 2001—this time
using a false border-crossing card. He was apprehended at the
port of entry, and was expeditiously removed for misrepre-
senting a material fact in violation of the Immigration and
Nationality Act (INA) § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)
(6)(C)(i).5 Undaunted, Morales reentered the United States
undetected the following day—a fact he disclosed to the
immigration officer during the reinstatement proceeding.
Sometime between his 1998 and 2001 removals, Morales
married a United States citizen. In March 2001, Morales’ wife
filed an I-130 alien relative petition based on his marriage to
a United States citizen. When Morales and his wife met with
the INS in January 2003, an immigration officer served them
with a denial of the I-130 petition and a notice of intent to
reinstate Morales’ removal order in accordance with INA
§ 241(a)(5), 8 U.S.C. § 1231(a)(5) and 8 C.F.R. § 241.8.
Morales petitioned here for review of the reinstatement order.
The case came before a three-judge panel, which held that
the regulation authorizing immigration officers to issue rein-
statement orders is invalid and Morales’ removal order could
only be reinstated by an immigration judge. See Morales-
Izquierdo v. Ashcroft, 388 F.3d 1299, 1305 (9th Cir. 2004).
4
Contrary to the administrative record, Morales claims he was not
removed at all, but that he voluntarily departed. The difference is immate-
rial for reinstatement purposes. See n.14 infra.
5
Pre-IIRIRA, this expedited removal at the border would have been cal-
led an “exclusion.” However, “removal” now encompasses both “exclu-
sion” and “deportation.” See n.3 supra. Again, Morales denies that he was
forcibly removed, claiming that he departed voluntarily.
MORALES-IZQUIERDO v. GONZALES 5275
We took the case en banc. See Morales-Izquierdo v. Gon-
zales, 423 F.3d 1118 (9th Cir. 2005).
II
As noted, Morales cannot be removed again under the 1994
removal order unless and until it was reinstated. The order
was reinstated by an immigration officer, who acted pursuant
to 8 C.F.R. § 241.8, which authorizes immigration officers—
rather than immigration judges6—to reinstate prior removal
orders of aliens who illegally reenter the United States.7
Morales argues that the Attorney General exceeded his
authority in promulgating the regulation. The three-judge
panel so held. However, the First, Sixth, Eighth and Eleventh
Circuits have upheld the regulation against similar challenges.
See De Sandoval v. U.S. Att’y Gen., 440 F.3d 1276, 1283
(11th Cir. 2006); Ochoa-Carrillo v. Gonzales, 437 F.3d 842,
846 (8th Cir. 2006); Lattab v. Ashcroft, 384 F.3d 8, 20 (1st
Cir. 2004). The Sixth Circuit saw the matter as so clear-cut
that it did not deem it necessary to publish its disposition
upholding the regulation. Tilley v. Chertoff, 144 Fed. App’x
536, 539-40 (6th Cir. 2005) (mem.), cert. denied, 127 S. Ct.
62 (2006). No other court has reached a contrary conclusion.
[1] A. In determining whether 8 C.F.R. § 241.8 is valid,
6
A prior regulation required a hearing before an immigration judge. 8
C.F.R. § 242.23 (repealed 1997).
7
This regulation was originally adopted by the INS, which was part of
the Department of Justice. See Inspection and Expedited Removal of
Aliens; Detention and Removal of Aliens; Conduct of Removal Proceed-
ings; Asylum Procedures, 62 Fed. Reg. 10,312, 10,379 (Mar. 6, 1997)
(codified in scattered parts of 8 C.F.R.). The INS ceased to exist in 2003,
and most of its functions were transferred to the Department of Homeland
Security (DHS). See Homeland Security Act of 2002, Pub. L. No. 107-
296, §§ 441, 471, 116 Stat. 2135, 2192, 2205 (codified at 6 U.S.C. §§ 251,
291). To minimize confusion, we use the term “INS,” even when referring
to DHS’ successor to the INS-U.S. Immigration and Customs Enforce-
ment.
5276 MORALES-IZQUIERDO v. GONZALES
we apply the familiar Chevron two-step approach. Chevron
U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837
(1984). Under Chevron step one, we ask “whether Congress
has directly spoken to the precise question at issue,” id. at 842
—i.e., whether DHS can reinstate a prior removal order with-
out a full-blown hearing before an immigration judge.
[2] Here, two sections of the INA are potentially impli-
cated. The first, INA § 240, titled “Removal proceedings,”
requires that “[a]n immigration judge shall conduct proceed-
ings for deciding the inadmissibility or deportability of an
alien.” INA § 240(a)(1), 8 U.S.C. § 1229a(a)(1).8 The second
relevant section, INA § 241, titled “Reinstatement of removal
orders against aliens illegally reentering,” provides:
If the Attorney General finds that an alien has reen-
tered the United States illegally after having been
removed or having departed voluntarily, under an
order of removal, the prior order of removal is rein-
stated from its original date and is not subject to
being reopened or reviewed, the alien is not eligible
and may not apply for any relief under this chapter,
and the alien shall be removed under the prior order
at any time after the reentry.
INA § 241(a)(5), 8 U.S.C. § 1231(a)(5). Section 241 makes
no mention of a hearing before an immigration judge, or any
other procedure. Most of the section is devoted to limiting the
alien’s rights and ensuring that the removal is carried out
expeditiously.
[3] Morales argues that Congress spoke clearly as to
8
Section 240 also provides certain procedural protections: the right to
representation, “a reasonable opportunity to examine the evidence against
the alien, to present evidence on the alien’s own behalf, and to cross-
examine witnesses,” and a complete record of the proceedings. INA
§ 240(b)(4), 8 U.S.C. § 1229a(b)(4).
MORALES-IZQUIERDO v. GONZALES 5277
whether a hearing before an immigration judge is required for
reinstating a prior removal order, and did so in INA § 240.
While recognizing that reinstatement is mentioned nowhere in
this section, Morales claims a reinstatement order is function-
ally a removal order because it has the effect of authorizing
an alien’s removal. In other words, reinstatement is simply a
species of removal, and is thus governed by INA § 240, which
calls for a hearing before an immigration judge. In support of
his argument, Morales points out that when Congress has
intended to exempt certain removal proceedings from the INA
§ 240 hearing requirement, it has done so explicitly.9 Rein-
statement is not among those proceedings explicitly
exempted.
[4] Morales’ argument that the failure to exempt reinstate-
ment from the requirement that a hearing be held before an
immigration judge, particularly when similar provisions of the
same statute contain explicit exemptions, carries some force.
But such failure hardly amounts to the kind of unambiguous
expression of congressional intent that would remove the
agency’s discretion at Chevron step one. Far more telling is
the fact that reinstatement and removal are placed in different
sections, which “logically can be understood as indicating a
congressional intention to treat reinstatement determinations
differently from first-instance determinations of removabili-
ty.” Lattab, 384 F.3d at 18 (citing Alexander v. Sandoval, 532
U.S. 275, 288-91 (2001)); see also De Sandoval, 440 F.3d at
1281. After all, “the words of a statute must be read in their
context and with a view to their place in the overall statutory
9
See INA § 235(b)(1), 8 U.S.C. § 1225(b)(1) (directing immigration
officers to “order the alien removed . . . without further hearing” for lack
of valid documents or for fraud); INA § 235(c), 8 U.S.C. § 1225(c)
(directing immigration officers to “order the alien removed” if suspected
of being inadmissible under security threat grounds, and report the order
to the Attorney General who will decide whether to provide a hearing);
INA § 238, 8 U.S.C. § 1228 (directing the Attorney General to institute
expedited removal procedures—either by an immigration judge or officer
—for aliens convicted of aggravated felonies).
5278 MORALES-IZQUIERDO v. GONZALES
scheme.” FDA v. Brown & Williamson Tobacco Corp., 529
U.S. 120, 133 (2000) (quoting Davis v. Mich. Dep’t of Trea-
sury, 489 U.S. 803, 809 (1989) (internal quotation marks
omitted)). Here, the fact that Congress placed reinstatement in
a separate section from removal suggests that reinstatement is
a separate procedure, not a species of removal.
[5] A closer look at the texts of the two sections confirms
that Congress intended reinstatement to be a different and far
more summary procedure than removal. Under INA § 240,
first-instance removal proceedings involve a broad inquiry.
To order an individual removed, the immigration judge must
make two determinations: (1) whether the individual is
removable from the United States; and, if so, (2) whether the
individual is otherwise eligible for relief from removal. See
INA § 240, 8 U.S.C. § 1229a. While the first determination
can be relatively straightforward, the second is often complex
and fact-intensive. The types of relief from removal include
cancellation of removal for extreme hardship on U.S. citizen
family members, adjustment of status for spouses of U.S. citi-
zens and asylum. See id.; see also INA § 208, 8 U.S.C. § 1158
(asylum); INA § 240A, 8 U.S.C. § 1229b (cancellation of
removal; adjustment of status). Determining what relief is
warranted under any of these provisions requires a formal
hearing before a trier of fact, such as an immigration judge.
[6] The scope of a reinstatement inquiry under INA § 241
is much narrower, and can be performed like any other minis-
terial enforcement action. The only question is whether the
alien has illegally reentered after having left the country while
subject to a removal order. As the Eleventh Circuit pointed
out, INA § 241 reinstatement—unlike INA § 240 first-
instance removal—“deprives aliens of any relief, reopening,
or review at the reinstatement stage.” De Sandoval, 440 F.3d
at 1281. By barring all relief, Congress eliminated the second
and much more difficult removal inquiry. The First and
Eighth Circuits similarly found that “the elimination of any
exogenous defense to reinstatement significantly narrows the
MORALES-IZQUIERDO v. GONZALES 5279
range of issues to be adjudicated, thereby limiting the value
of additional procedures.” Lattab, 384 F.3d at 20; see also
Alvarez-Portillo v. Ashcroft, 280 F.3d 858, 867 (8th Cir.
2002) (same).
Morever, the texts of the two sections differ in their delega-
tion of discretion: INA § 240 expressly requires that an immi-
gration judge conduct removal proceedings, whereas INA
§ 241 authorizes the Attorney General to reinstate removal
orders. “This distinction suggests Congress knew how to
mandate a hearing before an immigration judge, but chose not
to do so in the context of reinstatement orders.” De Sandoval,
440 F.3d at 1281.
[7] Given the different layout of the two sections and their
very different scope, we conclude that Congress did not con-
sider removal and reinstatement to be equivalent. Certainly,
nothing in the text of the INA, or the statutory scheme, sup-
ports Morales’ argument that reinstatement is merely a spe-
cies of removal. Nor does anything in the INA express an
unequivocal congressional intent that reinstatement proceed-
ings be conducted before an immigration judge. If anything,
the statutory scheme supports the opposite conclusion. See
Tilley, 144 Fed. App’x at 540 (“[T]he regulations promul-
gated in 8 C.F.R. § 241.8(a) meet all of the requirements of
[INA] § 241(a)(5). Therefore, we do not see an ambiguity that
requires us to review the agency’s implementation of its gov-
erning statute.”). Indeed, it’s hard to imagine why Congress
would have bothered with the detailed provisions of INA
§ 241 if it intended to give an alien subject to reinstatement
exactly the same rights and procedural protections as an alien
facing removal for the first time.10
10
Or, in the words of Judge Fernandez, “An objective observer would
have asked, as Congress did, just what was the purpose of all of that pro-
cedure, all of those punctilious niceties, which can take years to complete,
if the person could just step back into the country a few days later and
have the roundelay go on?” Castro-Cortez, 239 F.3d at 1054 (Fernandez,
J., dissenting).
5280 MORALES-IZQUIERDO v. GONZALES
[8] B. While this case could probably be decided under
the first Chevron inquiry, all other circuits that have published
opinions on this matter decided the issue at Chevron step two.
In an abundance of caution, we therefore proceed to the sec-
ond step, which requires us to ask “whether the agency’s
answer is based on a permissible construction of the statute.”
Chevron, 467 U.S. at 843. In making this determination, we
“need not conclude that the agency construction was the only
one it permissibly could have adopted . . . , or even the read-
ing the court would have reached if the question initially had
arisen in a judicial proceeding.” Id. at 843 n.11. Rather, “Con-
gress, when it left ambiguity in a statute meant for implemen-
tation by an agency, understood that the ambiguity would be
resolved, first and foremost, by the agency, and desired the
agency (rather than the courts) to possess whatever degree of
discretion the ambiguity allows.” Nat’l Cable & Telecomms.
Ass’n v. Brand X Internet Servs., 125 S. Ct. 2688, 2700
(2005) (quoting Smiley v. Citibank (S.D.), N.A., 517 U.S. 735,
740-41 (1996) (internal quotation marks omitted)).
Deference to an agency’s interpretation “is especially
appropriate in the immigration context where officials ‘exer-
cise especially sensitive political functions that implicate
questions of foreign relations.’ ” INS v. Aguirre-Aguirre, 526
U.S. 415, 425 (1999) (quoting INS v. Abudu, 485 U.S. 94, 110
(1988)). For these reasons, the First, Eighth and Eleventh Cir-
cuits had “little difficulty in concluding that the government’s
interpretation satisfies” the second step of Chevron. Lattab,
384 F.3d at 19-20; see also De Sandoval, 440 F.3d at 1283;
Ochoa-Carrillo, 437 F.3d at 846. We find no fault with this
conclusion.
Morales raises two issues, however, that our sister circuits
did not consider. First, he invokes the doctrine of constitu-
tional avoidance, asking us to construe the statute so as to
avoid serious constitutional issues. Morales relies on Clark v.
Martinez, 543 U.S. 371 (2005):
MORALES-IZQUIERDO v. GONZALES 5281
[W]hen deciding which of two plausible statutory
constructions to adopt, a court must consider the
necessary consequences of its choice. If one of them
would raise a multitude of constitutional problems,
the other should prevail—whether or not those con-
stitutional problems pertain to the particular litigant
before the Court.
Id. at 380-81; see also INS v. St. Cyr, 533 U.S. 289, 299-300
(2001) (same). According to Morales, construing the statute
so as to require that reinstatement hearings be held before an
immigration judge would avoid constitutional problems that
arise by assigning the reinstatement function to an immigra-
tion officer. See Part III infra (discussing various constitu-
tional challenges Morales raises to the reinstatement process).
The problem with Morales’ argument is that we are not
deciding between two plausible statutory constructions; we
are evaluating an agency’s interpretation of a statute under
Chevron. At step two of this inquiry, our function is “not sim-
ply [to] impose [our] own construction on the statute, as
would be necessary in the absence of an administrative inter-
pretation. Rather, . . . the question for the court is whether the
agency’s answer is based on a permissible construction of the
statute.” Chevron, 467 U.S. at 843 (internal footnote omitted).
When Congress has explicitly or implicitly left a gap for an
agency to fill, and the agency has filled it, we have no author-
ity to re-construe the statute, even to avoid potential constitu-
tional problems; we can only decide whether the agency’s
interpretation reflects a plausible reading of the statutory text.
Clark v. Martinez, and the constitutional avoidance doctrine
it embodies, plays no role in the second Chevron inquiry.
Second, Morales argues that the Attorney General imper-
missibly eliminated the hearing requirement in 1997, when it
had been a mainstay of the reinstatement process during the
previous four decades. Compare 8 C.F.R. § 242.23(b)
(repealed 1997) (requiring a hearing before an immigration
5282 MORALES-IZQUIERDO v. GONZALES
judge for reinstatement), with 8 C.F.R. § 241.8(a) (“The alien
has no right to a hearing before an immigration judge in [rein-
statement proceedings].”). Morales labels this argument
“[c]ongressional acquiescence in the prior administrative
practice.” The Supreme Court, however, has drawn a sharp
distinction between “ ‘Congress’ deliberate acquiescence’ ”
and its “failure to express any opinion.” Rapanos v. United
States, 126 S. Ct. 2208, 2231 (2006) (plurality opinion). Con-
gressional acquiescence can only be inferred when there is
“overwhelming evidence” that Congress explicitly considered
the “precise issue” presented to the court. Id. (quoting Solid
Waste Agency of N. Cook County v. U.S. Army Corps of
Eng’rs, 531 U.S. 159, 169 n.5 (2001) (“overwhelming evi-
dence”); Bob Jones Univ. v. United States, 461 U.S. 574, 600
(1983) (“precise issue”)).
Here, we concluded at Chevron step one that Congress has
not expressed a clear preference that reinstatement hearings
be held before immigration judges; if anything, the INA’s
statutory scheme supports the opposite conclusion. Nor has
Morales pointed to anything in the legislative history that dis-
closes congressional acquiescence in the agency’s past
practice—and certainly not the requisite “overwhelming evi-
dence.” A finding of congressional acquiescence must be
reserved for those rare instances where it is very clear that
Congress has considered and approved of an agency’s prac-
tice, lest the agency be improperly deprived of the very flexi-
bility Congress intended to delegate. Such is not the case here.
We also understand Morales to be arguing that the agency’s
change in policy was impermissibly inconsistent with its past
practice. An “[u]nexplained inconsistency is . . . a reason for
holding an interpretation to be an arbitrary and capricious
change from agency practice under the Administrative Proce-
dure Act.” Brand X, 125 S. Ct. at 2699 (emphasis added).
This rule, too, is reserved for rare instances, such as when an
agency provides no explanation at all for a change in policy,
or when its explanation is so unclear or contradictory that we
MORALES-IZQUIERDO v. GONZALES 5283
are left in doubt as to the reason for the change in direction.
A broader rule would deny agencies the necessary flexibility
to change policies in light of “changed factual circumstances,
or a change in administrations.” Id. at 2700. Indeed, Chevron
itself involved a 180-degree reversal in an agency’s position
that survived judicial scrutiny. Chevron, 467 U.S. at 857-58;
see also id. at 863 (“An initial agency interpretation is not
instantly carved in stone.”).
[9] The regulatory change here was adequately explained.
The change in the reinstatement regulation was part of a
major overhaul of the INA’s implementing regulations,
designed “to implement the provisions of the Illegal Immigra-
tion Reform and Immigrant Responsibility Act of 1996
(IIRIRA) and the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA).” Inspection and Expedited Removal
of Aliens; Detention and Removal of Aliens; Conduct of
Removal Proceedings; Asylum Procedures, 62 Fed. Reg. 444,
444 (proposed Jan. 3, 1997) (codified in scattered parts of 8
C.F.R.). The notice accompanying the proposed regulations
explains that the cumbersome procedure embodied in the
existing reinstatement rule “resulted in limited use of the pro-
vision.” Id. at 451. Such limited use was consistent with pre-
IIRIRA law, which applied reinstatement to a narrow class of
previously-deported aliens.11 But IIRIRA dramatically
expanded the class of aliens subject to reinstatement, while
narrowing the defenses available in such proceedings. As the
Supreme Court noted last Term, “In IIRIRA, Congress
replaced [the existing] reinstatement provision with one that
11
Congress first instituted reinstatement in 1950, but only for certain
immigrants (e.g., “subversives” and “anarchists”). Fernandez-Vargas v.
Gonzales, 126 S. Ct. 2422, 2425-26 (2006) (citing Internal Security Act of
1950, § 23, 64 Stat. 1012). The INA, passed in 1952, broadened the rein-
statement provision to apply to a somewhat larger class of aliens, those
deported for engaging in certain unlawful activities—e.g., smuggling,
marriage fraud, crimes of moral turpitude, multiple criminal convictions,
aggravated felonies, illegal drug use or dealing, and terrorism activities.
See INA § 242, 8 U.S.C. § 1252 (repealed 1996).
5284 MORALES-IZQUIERDO v. GONZALES
toed a harder line . . . . Unlike its predecessor, § 241(a)(5)
applies to all illegal reentrants, explicitly insulates the
removal orders from review, and generally forecloses discre-
tionary relief from the terms of the reinstated order.”
Fernandez-Vargas v. Gonzales, 126 S. Ct. 2422, 2426 (2006).
Congress’ ambitious purpose behind IIRIRA was to “enable
the prompt admission of those who are entitled to be admit-
ted, the prompt exclusion or removal of those who are not so
entitled, and the clear distinction between these categories.”
H.R. Rep. No. 104-469(I), at 111 (1996); see also id. at 107
(“Existing procedures to deny entry to and to remove illegal
aliens from the United States are cumbersome and duplica-
tive.”); U.S. Representative Zoe Lofgren, A Decade of Radi-
cal Change in Immigration Law: An Inside Perspective, 16
Stan. L. & Pol’y Rev. 349, 354-70 (2005) (asserting, albeit in
disagreeing with its purpose, that IIRIRA aimed at streamlin-
ing the removal process).
[10] The net effect of these statutory changes is two-fold.
First, IIRIRA brings vastly more aliens within the sweep of
the reinstatement provision, essentially making every
removed alien subject to reinstatement if he returns to the
United States without the Attorney General’s permission. Sec-
ond, the decision to reinstate is now far more mechanical:
There need be no determination whether the alien falls into
one of the narrow categories specified in the earlier statute as
eligible for reinstatement, see n.11 supra, and aliens can no
longer seek certain kinds of relief, such as adjustment of sta-
tus. These major legislative changes provide an adequate jus-
tification for the Attorney General’s decision to make parallel
changes to the implementing regulations. “Providing a
mechanical procedure for the reinstatement of prior orders is
entirely consistent with [IIRIRA’s] purpose”—“to make the
removal of illegal reentrants more expeditious.” Lattab, 384
F.3d at 20.
[11] We thus conclude that the regulation is a valid inter-
pretation of the INA.
MORALES-IZQUIERDO v. GONZALES 5285
III
We now turn to Morales’ argument that the regulation, if
authorized under Chevron, is nevertheless invalid because it
violates various constitutional guarantees.
[12] A. Morales first argues that the regulation violates
due process because it assigns the reinstatement determination
to an immigration officer—an official not qualified to resolve
disputed questions as to the factual predicates for reinstate-
ment. But reinstatement only requires proof that (1) petitioner
is an alien, (2) who was subject to a prior removal order, and
(3) who illegally reentered the United States. INA
§ 241(a)(5), 8 U.S.C. § 1231(a)(5); 8 C.F.R. § 241.8. And
“[a]s a predicate to obtaining relief for a violation of proce-
dural due process rights in immigration proceedings, an alien
must show that the violation prejudiced him.” Padilla v. Ash-
croft, 334 F.3d 921, 924-25 (9th Cir. 2003) (quoting Ramirez-
Alejandre v. Ashcroft, 320 F.3d 858, 875 (9th Cir. 2003) (en
banc)). To show prejudice, Morales must present “plausible
scenarios in which the outcome of the proceedings would
have been different” if a more elaborate process were pro-
vided. Walters v. Reno, 145 F.3d 1032, 1044 (9th Cir. 1998).
We note at the outset that the regulation provides signifi-
cant procedural safeguards against erroneous reinstatements.
First, the immigration officer must verify the identity of the
alien. “In disputed cases, verification of identity shall be
accomplished by a comparison of fingerprints.” 8 C.F.R.
§ 241.8(a)(2). If no fingerprints are available, the removal
order cannot be reinstated under 8 C.F.R. § 241.8. Id.; see
also Ochoa-Carrillo, 437 F.3d at 847 (discussing the finger-
print requirement). Second, the immigration officer “must
obtain the prior order of exclusion, deportation, or removal
relating to the alien.” 8 C.F.R. § 241.8(a)(1). Without this
documentation, 8 C.F.R. § 214.8 cannot be used and the mat-
ter is referred to an immigration judge.12 And, third, the offi-
12
Similarly, a removal order cannot be reinstated under 8 C.F.R. § 241.8
if the alien raises either (1) an unresolved adjustment of status claim under
5286 MORALES-IZQUIERDO v. GONZALES
cer must determine whether the alien reentered the United
States illegally. “In making this determination, the officer
shall consider all relevant evidence, including statements
made by the alien and any evidence in the alien’s possession.
The immigration officer shall attempt to verify an alien’s
claim, if any, that he or she was lawfully admitted, which
shall include a check of Service data systems available to the
officer.” 8 C.F.R. § 241.8(a)(3).
[13] We need not determine whether these procedures are
adequate as to all aliens in all cases because Morales does not
dispute that he satisfies the statutory predicates for reinstate-
ment. Rather, he argues that his 1994 in absentia removal
order is defective because he never got notice of the removal
hearing, his 1998 removal was actually a voluntary departure
and his marriage to a U.S. citizen entitled him to adjustment
of status. But the reinstatement statute specifically precludes
Morales from seeking to reopen the previous removal order
based on defective service or any other grounds. INA
§ 241(a)(5), 8 U.S.C. § 1231(a)(5).13 And, that Morales may
the Haitian Refugee Immigrant Fairness Act of 1998 or the Nicaraguan
Adjustment and Central American Relief Act, or (2) an asylum claim. See
8 C.F.R. § 241.8(d)-(e). If the alien raises an adjustment of status claim
under either of these statutes, “[t]he immigration officer may not reinstate
the prior order in accordance with this section unless and until a final deci-
sion to deny the application for adjustment has been made.” 8 C.F.R.
§ 241.8(d). Likewise, if the alien “expresses a fear of returning to the
country designated in that order, the alien shall be immediately referred to
an asylum officer for an interview to determine whether the alien has a
reasonable fear of persecution or torture.” 8 C.F.R. § 241.8(e); see also
Fernandez-Vargas, 126 S. Ct. at 2426 n.4 (same). If the asylum officer
determines that the fear is reasonable, he must refer the matter to an immi-
gration judge “for full consideration of the request for withholding of
removal.” 8 C.F.R. § 208.31(e).
13
The INA does have a procedure an alien may use to reopen an in
absentia removal order based on a claim of lack of notice, see INA
§ 240(b)(5)(C)(ii), 8 U.S.C. § 1229a(b)(5)(C)(ii), but Morales has failed to
avail himself of it.
MORALES-IZQUIERDO v. GONZALES 5287
have departed voluntarily rather than been deported is of no
consequence.14 Because none of the grounds Morales raises
would have been a proper basis for relief during the reinstate-
ment process, he suffered no prejudice by being denied access
to an official who could adjudicate facts that might support
these claims. Morales has thus failed to establish the requisite
prejudice. See Padilla, 334 F.3d at 925 (“A hearing before an
immigration judge, therefore, could not help [petitioner]
because . . . [s]ection 1231(a)(5) provides that an alien who
meets those criteria flatly ‘is not eligible’ for other relief.”).
[14] We are satisfied, moreover, that the regulation pro-
vides sufficient procedural safeguards to withstand a facial
challenge for patent procedural insufficiency. Given the nar-
row and mechanical determinations immigration officers must
make and the procedural safeguards provided by 8 C.F.R.
§ 241.8, see pp. 5285-86 supra, the risk of erroneous depriva-
tion is extremely low. DHS estimates that immigration offi-
cers have issued approximately 211,000 reinstatement orders
nationwide since 1999, and the amici identify only three such
cases that have been reversed on grounds other than retroactivi-
ty.15 Because the risk of error is so low, any additional or sub-
stitute procedural safeguards—including those Morales seeks
—would produce marginal protections, if any, against errone-
ous determinations, while the cost in terms of resources and
delay would be substantial. Due process does not require such
a poor bargain. See Mathews v. Eldridge, 424 U.S. 319, 335
(1976).
14
Any mode of departure—voluntary or involuntary—while subject to
an order of removal constitutes a removal for reinstatement purposes. See
INA § 241(a)(5), 8 U.S.C. § 1231(a)(5) (ordering the Attorney General to
reinstate a removal order if “an alien has reentered the United States ille-
gally after having been removed or having departed voluntarily [while]
under an order of removal”).
15
The Supreme Court held that the reinstatement provision has no
impermissible retroactive effect in Fernandez-Vargas, 126 S. Ct. at 2434,
so the officers did not err in reinstating pre-1996 removal orders.
5288 MORALES-IZQUIERDO v. GONZALES
While the regulation does not offend due process, we leave
open the possibility that individual petitioners may raise pro-
cedural defects in their particular cases. Morales himself
raises several such challenges, and to these we now turn.
[15] B. Morales first claims he had no meaningful oppor-
tunity to review his file and respond to adverse evidence. But
Morales points to no material errors in his file; nor does he
explain what evidence he would have presented, had he been
given an opportunity to do so. 8 C.F.R. § 241.8(b) requires
immigration officers to provide notice, and permits the alien
to make a written or oral statement to be considered by the
officer under 8 C.F.R. § 241.8(a)(3). Morales was given the
benefit of these procedures, and he has failed to show how a
more elaborate process would have helped him.
[16] Second, he argues he should have had an opportunity
to obtain assistance of counsel, but there is no Sixth Amend-
ment right to counsel in any civil removal proceeding. Lara-
Torres v. Ashcroft, 383 F.3d 968, 974 (9th Cir. 2004). Any
such right is statutory, and the INA extends the right to repre-
sentation by counsel only to aliens in proceedings before an
immigration judge. Similarly, the Administrative Procedure
Act provides a right to counsel “in every case of adjudication
required by statute to be determined on the record after oppor-
tunity for an agency hearing.” 5 U.S.C. § 554(a). The INA
does not require a hearing here. In any event, Morales cannot
show prejudice: He does not contest the predicates for rein-
statement, and was not eligible for any type of relief. Having
a lawyer would not have changed the outcome.
[17] Morales’ third argument, that the immigration officer
who reinstated his removal order suffered from institutional
bias, is foreclosed by Marcello v. Bonds, 349 U.S. 302
(1955): “Th[is] contention [of bias] is without substance when
considered against the long-standing practice in deportation
proceedings, judicially approved in numerous decisions in the
federal courts, and against the special considerations applica-
MORALES-IZQUIERDO v. GONZALES 5289
ble to deportation which the Congress may take into account
in exercising its particularly broad discretion in immigration
matters.” Id. at 311; see also United States v. Garcia-
Martinez, 228 F.3d 956, 960-63 (9th Cir. 2000).
[18] Finally, Morales argues that he was denied due process
because he was not notified of the availability of judicial
review. We have never required such notice in the civil immi-
gration context, and we find no reason to require it in the rein-
statement context—where an alien’s rights and remedies are
severely limited. See Part III.C infra. In any event, petitioner
obviously got notice because he “filed a timely petition for
judicial review to this court. Again, no prejudice has been
shown.” Ochoa-Carrillo, 437 F.3d at 848.
C. Morales also claims that a removal order may not con-
stitutionally be reinstated if the underlying removal proceed-
ing itself violated due process. We have, on several occasions,
expressed “serious[ ] doubt that the government’s new rein-
statement procedure comports with the Due Process Clause.”
Castro-Cortez v. INS, 239 F.3d 1037, 1040 (9th Cir. 2001),
abrogated by Fernandez-Vargas, 126 S. Ct. at 2427 & n.5.16
And, one of our cases lends direct support to Morales’ conten-
tion: “[T]he INS cannot reinstate a prior order of removal that
did not comport with due process.” Arreola-Arreola v. Ash-
croft, 383 F.3d 956, 963 (9th Cir. 2004).
[19] To the extent we so held in Arreola-Arreola, we revisit
16
See also Perez-Gonzalez, 379 F.3d at 796 (addressing the harm “on
narrower grounds than due process”); Padilla, 334 F.3d at 924 (“[W]e still
need not decide whether the INS’s regulation offends due process . . . .”).
But see United States v. Luna-Madellaga, 315 F.3d 1224, 1226-27 (9th
Cir. 2003) (“[A]n alien who illegally reenters the United States while
under an order of removal has already received a full and fair hearing
. . . .”); Alvarenga-Villalobos v. Ashcroft, 271 F.3d 1169, 1173, 1174 (9th
Cir. 2001) (“[A]liens removable under § 241(a)(5) have already received
all of the process that is due under the Constitution.” “To preclude a sec-
ond bite at the apple after an illegal reentry does not offend due process.”).
5290 MORALES-IZQUIERDO v. GONZALES
that decision here and reverse field: Reinstatement of a prior
removal order—regardless of the process afforded in the
underlying order—does not offend due process because rein-
statement of a prior order does not change the alien’s rights
or remedies. The only effect of the reinstatement order is to
cause Morales’ removal, thus denying him any benefits from
his latest violation of U.S. law, committed when he reentered
the United States without the Attorney General’s permission
in contravention of INA § 212(a)(9), 8 U.S.C. § 1182(a)(9).
The reinstatement order imposes no civil or criminal penal-
ties, creates no new obstacles to attacking the validity of the
removal order, see, e.g., INA § 240(b)(5)(C)(ii), 8 U.S.C.
§ 1229a(b)(5)(C)(ii) (allowing reopening of a removal order
based on lack of notice), and does not diminish petitioner’s
access to whatever path for lawful entry into the United States
might otherwise be available to him under the immigration
laws.
The Supreme Court noted this very point in Fernandez-
Vargas:
While the [reinstatement] law looks back to a past
act in its application to “an alien [who] has reentered
. . . illegally,” 8 U.S.C. § 1231(a)(5), the provision
does not penalize an alien for reentry (criminal and
civil penalties do that); it establishes a process to
remove him “under the prior order at any time after
the reentry.” Ibid. . . . [T]he statute applies to stop an
indefinitely continuing violation that the alien him-
self could end at any time by voluntarily leaving the
country.
126 S. Ct. at 2432 (second alteration in original). While aliens
have a right to fair procedures, they have no constitutional
right to force the government to re-adjudicate a final removal
order by unlawfully reentering the country. Nor is the govern-
ment required to expend vast resources on extraneous proce-
MORALES-IZQUIERDO v. GONZALES 5291
dures before reinstating a removal order that has already been
finalized and executed.
Or, to put it differently, an alien who respects our laws and
remains abroad after he has been removed should have no
fewer opportunities to challenge his removal order than one
who unlawfully reenters the country despite our government’s
concerted efforts to keep him out. If Morales has a legitimate
basis for challenging his prior removal order, he will be able
to pursue it after he leaves the country, just like every other
alien in his position. If he has no such basis, nothing in the
Due Process Clause gives him the right to manufacture for
himself a new opportunity to raise such a challenge. The con-
trary conclusion would create a new and wholly unwarranted
incentive for aliens who have previously been removed to
reenter the country illegally in order to take advantage of this
self-help remedy. It would also make a mockery of aliens who
do respect our laws and wait patiently outside our borders
seeking lawful admission. Nothing in the Constitution
requires such a perverse result.
IV
[20] We conclude that a previously removed alien who
reenters the country illegally is not entitled to a hearing before
an immigration judge to determine whether to reinstate a prior
removal order. The reinstatement statute and its implementing
regulation comport with due process, and 8 C.F.R. § 241.8 is
a valid interpretation of the INA.
[21] Morales has shown no violation of due process in the
conduct of his reinstatement proceeding. To the extent genu-
ine issues of material fact exist with respect to his underlying
removal order, this “prior order . . . is not subject to being
reopened or reviewed” during the course of the reinstatement
process. INA § 241(a)(5), 8 U.S.C. § 1231(a)(5).
PETITION DENIED.
5292 MORALES-IZQUIERDO v. GONZALES
THOMAS, Circuit Judge, with whom PREGERSON,
REINHARDT, and W. FLETCHER, Circuit Judges, join, dis-
senting:
On January 15, 2003, Raul Morales-Izquierdo and his
United States citizen wife, Patricia Morales, attended a meet-
ing at the INS’s Tacoma, Washington office. The Moraleses
expected to discuss the I-130 alien relative petition that Patri-
cia had filed on March 1, 2001, to adjust her husband’s status
to that of a legal permanent resident. Instead, the INS served
on the couple both a denial of the petition for adjustment of
status and a notice of intent to reinstate a 1994 deportation
order against Raul Morales under INA § 241(a)(5).
Morales has consistently and emphatically maintained that
the 1994 deportation order is invalid because he was never
given notice of the 1994 hearing at which he was ordered
deported in absentia. In a sworn statement, Morales claimed
never to have received the notice that was sent to his ex-
girlfriend’s house, explaining that someone else had signed to
indicate receipt of the notice. He has never been granted a
hearing at which he could present his case; the majority opin-
ion assures that he never will be.
This result would have been impossible under the regula-
tions that governed reinstatement proceedings for nearly
forty-five years. Under the former 8 C.F.R. § 242.23, an alien
subject to a reinstatement order was entitled to a hearing
before an immigration judge, who was charged with deter-
mining the identity of the alien, whether the alien had previ-
ously been deported, and whether the alien illegally reentered
the United States. 8 C.F.R. § 242.23 (repealed 1997). At the
hearing before the immigration judge, the alien had the oppor-
tunity to contest the charges and evidence, present his or her
own evidence, and apply for relief from deportation. Id. The
alien was also afforded the right to appeal an adverse decision
to the Board of Immigration Appeals and ultimately to the
MORALES-IZQUIERDO v. GONZALES 5293
federal courts of appeal. Castro-Cortez v. INS, 239 F.3d 1037,
1044 (9th Cir. 2001).
All of that changed in 1997, when the Attorney General
made a complete course reversal. Under the new regulation,
aliens were to be removed from the country without a hearing
or an opportunity to contest the charges, via reinstatement by
a low-level Department of Homeland Security employee who
served as both prosecutor and judge.
The central question in this case is whether the Immigration
and Naturalization Act (“INA”) permits the Attorney General
to make these changes, eliminating longstanding procedural
protections. Because the INA unambiguously prohibits the
Attorney General from creating alternative procedures for any
inadmissibility or deportability determinations absent explicit
congressional permission and because the creation of less-
protective procedural mechanisms raises serious constitu-
tional questions, I respectfully dissent from the majority’s
decision to uphold the Attorney General’s regulation.1
I
As the majority and I agree, the appropriate framework for
assessing the validity of 8 C.F.R. § 241.8 is dictated by Chev-
ron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.
837, 842-45 (1984). Under Chevron, we must consider first
“whether Congress has directly spoken to the precise question
at issue.” Id. at 842. “If Congress has done so, the inquiry is
at an end; the court ‘must give effect to the unambiguously
expressed intent of Congress.’ ” Food and Drug Administra-
tion v. Brown & Williamson Tobacco Corp., 529 U.S. 120,
132 (2000) (quoting Chevron, 467 U.S. at 843).
1
Because I conclude that the regulation is ultra vires to the statute, I find
it unnecessary to reach the question of whether the regulation violates the
Due Process Clause.
5294 MORALES-IZQUIERDO v. GONZALES
In determining congressional intent, we not only examine
the precise statutory section in question but also analyze the
provision in the context of the governing statute as a whole,
presuming a congressional intent to create a “symmetrical and
coherent regulatory scheme.” Id. at 1301 (quoting Gustafson
v. Alloyd Co., 513 U.S. 561, 569 (1995)). We must also “be
guided to a degree by common sense as to the manner in
which Congress is likely to delegate a policy decision of [sig-
nificant] economic and political magnitude to an administra-
tive agency.” Id. If, after conducting such an analysis, we
conclude that Congress has not addressed the issue, we “must
respect the agency’s construction of the statute so long as it
is permissible.” Id. at 1300 (citing INS v. Aguirre-Aguirre,
526 U.S. 415, 424 (1999)).
Ultimately, “the judiciary is the final authority” in inter-
preting statutes, and courts must employ all “traditional tools
of statutory construction” under Chevron step one to ascertain
whether Congress’s intent is “clear.” Chevron, 467 U.S. at
843 n.9. In this case, the text and structure of the INA are
clear; the statute unambiguously prohibits the Attorney Gen-
eral’s interpretation. But even if the statute were ambiguous,
the Attorney General’s interpretation would be precluded by
the canon of constitutional avoidance — unquestionably a
“traditional tool of statutory construction” to be used at Chev-
ron step one — pursuant to which we must presume that Con-
gress did not intend to permit any interpretation that, like the
Attorney General’s, raises serious constitutional questions.
II
The intent of Congress could hardly be clearer. The text
and structure of the INA unambiguously require that inadmis-
sibility and deportability determinations be made by an immi-
gration judge pursuant to the procedural protections outlined
in INA § 240. Section 240 declares that the procedural mech-
anism it creates “shall be the sole and exclusive procedure for
determining” an alien’s removability, unless Congress has
MORALES-IZQUIERDO v. GONZALES 5295
“specified” an alternative procedure. INA § 240(a)(3); 8
U.S.C. § 1229(a)(3). This language leaves no room for quar-
reling. Unless Congress explicitly creates a new procedural
mechanism, the § 240 procedure must be followed in any and
all “removal proceedings.” INA § 240(a)(1); 8 U.S.C.
§ 1229(a)(1). Because reinstatement proceedings determine
the admissibility of aliens and because the reinstatement pro-
vision contains no explicit procedural exception, it is clear
that § 241(a)(5) proceedings must employ the required § 240
mechanism.
Although the statute’s plain language should settle the
question, it is worth noting that this construction is buttressed
by the INA’s inclusion of several provisions that do explicitly
create or authorize alternative procedural mechanisms, dem-
onstrating that Congress knew how to express an intention to
deviate from § 240 and failed to do so in § 241(a)(5). See,
e.g., INA § 235(b)(1) (expedited removal for arriving and cer-
tain other aliens); INA § 235(c) (expedited removal for terror-
ists); INA § 238 (administrative removal for nonpermanent
residents convicted of an aggravated felony). The existence of
these explicit provisions has considerable significance in dis-
cerning Congress’s intent. See Valderrama-Fonseca v. INS,
116 F.3d 853, 856 & n. 6 (9th Cir.1997) (noting in relation to
IIRIRA § 348 that “it is apparent that Congress knew how to
make provisions of IIRIRA applicable to pending proceedings
when it wanted to”).
In short, § 240 requires an explicit exemption before expe-
dited procedures may be used, and § 241(a)(5) contains no
such exemption. Thus, because 8 C.F.R. § 241.8 goes beyond
the authority of the INA by eliminating the express and exclu-
sive authority of immigration judges to determine whether an
alien’s prior deportation order should be reinstated under INA
§ 241(a)(5), the regulation is ultra vires to INA § 240(a). See
Romero v. INS, 39 F.3d 977, 979-81 (9th Cir. 1994).
Despite these unambiguous statutory requirements, the
majority concludes that reinstatement proceedings need not
5296 MORALES-IZQUIERDO v. GONZALES
follow § 240 strictures. The majority holds that the reinstate-
ment provision authorizes the Attorney General’s less-
protective procedural mechanism just by implying a prefer-
ence for shorter proceedings. But this analysis violates the
very statute it purports to interpret. The INA does not tolerate
implied authorizations; it requires Congress to “specify” an
intention to deviate from § 240 guarantees. INA § 240(a)(3)
(“Unless otherwise specified in this Act, a proceeding under
this section shall be the sole and exclusive procedure” for
removal.) (emphasis added).
The majority, of course, does not rest entirely on its asser-
tion of implied repeal; it also argues that reinstatement pro-
ceedings are not “removal proceedings” and that they
therefore do not fall within the ambit of § 240. However,
reading the reinstatement provision both on its face and in its
context, “with a view to [its] place in the overall statutory
scheme,” Davis v. Michigan Dept. of Treasury, 489 U.S. 803,
809 (1989), it is evident that § 241(a)(5) is not an alternative
to § 240; rather, a § 241(a)(5) reinstatement order may issue
only after a § 240 determination has been made that the alien
is removable. The reinstatement provision does nothing to
change the fact that illegally reentering aliens fall squarely
within the category of “removable” aliens entitled to § 240
procedural guarantees. Section 240(e)(2) defines “removable”
aliens as all those that are “inadmissible under section 212”
or “deportable under section 237.” One of the enumerated
grounds for inadmissibility under § 212 is illegal reentry; it
covers aliens who have “been ordered removed” and have
“enter[ed] or attempt[ed] to reenter the United States without
being admitted.”2 INA § 212(a)(9)(C)(i); 8 U.S.C. § 1182(a)
2
Illegally reentering aliens are also “deportable” under INA § 237(a)(1);
8 U.S.C. § 1226a(a)(1), which includes aliens that were “inadmissible” at
the time of entry and those that are “present in the United States in viola-
tion of” the INA. Under § 212(a)(9), all reentering aliens are “inadmissi-
ble,” and under INA § 276; 8 U.S.C. § 1326(a), which makes it a crime
to reenter the United States after receiving a formal order of deportation,
exclusion, or removal, all reentering aliens are “present in the United
States in violation of” the INA.
MORALES-IZQUIERDO v. GONZALES 5297
(9)(C)(i). By enumerating illegal reentry as a ground for inad-
missibility and by specifying that all inadmissible aliens are
“removable” within the meaning of § 240, the INA expressly
provides for the removal of illegally reentering aliens pursu-
ant to ordinary § 240 procedures.
Importantly, § 212(a)(9)(C)(i) also specifically anticipates
reentry after a formal removal order, meaning that the provi-
sion covers exactly the same group of aliens that the reinstate-
ment provision covers. It is therefore simply not true that
“reinstateable” aliens constitute a separate category from “re-
movable” aliens. The so-called “first-instance” removal provi-
sions, namely §§ 240 and 212, expressly cover the same
aliens that the reinstatement provision covers.
This dual coverage need not render either provision sur-
plusage nor need it imply that an alien subject to reinstate-
ment is entitled to precisely the same rights as an alien facing
removal for the first time. As many courts have made clear,
the reinstatement provision strips illegally reentering aliens of
discrete rights that are granted to first time removable aliens,
including the rights to “relief, reopening, [and] review.” De
Sandoval v. U.S. Att’y Gen., 440 F.3d 1276, 1281 (11th Cir.
2006). The majority is also correct to note that § 241(a)(5)
narrows the substantive inquiry that must be made prior to
determining the alien’s status. Additionally, the reinstatement
provision creates a new kind of order to be entered at the end
of a § 240 proceeding: an immediately-executing reinstate-
ment order. The reinstatement provision, therefore, has real
effects on the rights of reentering aliens and on the conse-
quences of a reinstatement determination. But it does not —
and cannot be read to — authorize abrogation of the proce-
dural guarantees mandated by § 240. The rights-stripping pro-
visions in § 241(a)(5) do not conflict with any § 240
procedures; the reinstatement provision can be given full
effect without undermining § 240 exclusivity.
In short, the only way to give effect to both §§ 240 and
241(a)(5), especially taking into consideration the express
5298 MORALES-IZQUIERDO v. GONZALES
inclusion of reentering aliens in the category of “removable”
aliens, is to require that a reinstatement order issue only after
a full § 240 hearing before an immigration judge. See
Bowsher v. Merck & Co., Inc., 460 U.S. 824, 833 (1983)
(restating and reaffirming “the settled principle of statutory
construction that we must give effect, if possible, to every
word of the statute”); FTC v. Mandel Brothers, Inc., 359 U.S.
385, 389 (1959) (holding that statutes should be interpreted so
as to “fit, if possible, all parts into an harmonious whole”).
The majority finds additional justification for reading
§ 241(a)(5) as authorizing a deviation from § 240 require-
ments in the fact that the reinstatement provision mentions the
Attorney General rather than immigration judges, allegedly
indicating a differential delegation of discretion. However, the
Attorney General is merely a titular decision-maker, an exam-
ple of statutory synecdoche, using the head of the Department
of Justice to refer to all of its employees. Countless provisions
of the INA refer to determinations of “the Attorney General”
even when those determinations will actually be made by
lower-level employees and even when those determinations
must actually be made by immigration judges pursuant to
§ 240 procedures. For example, the statutory provision outlin-
ing grounds of inadmissibility, INA § 212, contains several
references to findings of the Attorney General even though
§ 240 unquestionably requires that immigration judges make
inadmissibility determinations. See, e.g., INA § 212(a)(2)(C)
(deeming inadmissible any alien whom “the Attorney General
knows or has reason to believe” is a drug trafficker or a drug
trafficker’s spouse); INA § 212(a)(2)(H)(i) (any alien whom
“the Attorney General knows or has reason to believe” is a
human trafficker); § 212(a)(2)(I) (any alien whom “the Attor-
ney General knows, or has reason to believe” is a money laun-
derer); § 212(a)(3)(A) (any alien whom “the Attorney General
knows, or has reasonable ground to believe, seeks to enter the
United States” as a spy); § 212(a)(3)(B)(i)(II) (any alien
whom “the Attorney General . . . knows, or has reasonable
ground to believe” is an active terrorist); § 212(a)(4)(A) (any
MORALES-IZQUIERDO v. GONZALES 5299
alien who “in the opinion of the Attorney General at the time
of application for admission or adjustment of status” is likely
to become a “public charge”). These provisions might autho-
rize the Attorney General to promulgate regulations clarifying
the burden of proof or the evidence that is admissible, but
they certainly do not affect the § 240 requirement that inad-
missibility determinations be made by immigration judges.
The majority additionally claims that the mention of immi-
gration judges in § 240 “suggests Congress knew how to man-
date a hearing before an immigration judge, but chose not to
do so in the context of reinstatement orders.” Maj. Op. at
5279 (quoting De Sandoval, 440 F.3d at 1281). This argument
begs the question. The point is that Congress did not believe
itself to be mandating or authorizing any kind of hearing
whatsoever; section 241(a)(5) is a substantive provision that
leaves § 240 hearing requirements entirely intact.
Although the majority is right to assert that § 241(a)(5)
indicates a desire to shorten proceedings for illegally reenter-
ing aliens, it is wrong to conclude that the reinstatement pro-
vision authorizes a deviation from § 240 procedural
guarantees. Section 241(a)(5) streamlines reinstatement pro-
ceedings by stripping reentering aliens of a discrete set of
rights, not by authorizing an expedited procedural mecha-
nism. Considering the text of the reinstatement provision and
its context in the statutory scheme, it is clear that § 241(a)(5)
authorizes reinstatement orders to issue only after an immi-
gration judge makes a § 240 determination that the alien is
“removable.”
In sum, Congress has expressed its unambiguous intent that
the procedural mechanisms it created in § 240 “shall be the
sole and exclusive procedure for determining” an alien’s
removability. Because the Attorney General’s regulation
establishes procedures that conflict with the express provi-
sions of the INA, it cannot stand. See Bona v. Gonzales, 425
5300 MORALES-IZQUIERDO v. GONZALES
F.3d 663, 670-71 (9th Cir. 2005) (holding that a regulation
that is contrary to statute is invalid).
III
Even if the text and structure of the INA were sufficiently
ambiguous to leave some discretion to the Attorney General,
the canon of constitutional avoidance would preclude the
interpretation that the Attorney General chose.
A
The avoidance canon instructs courts to reject those “plau-
sible statutory constructions” that “would raise a multitude of
constitutional problems,” Clark v. Martinez, 543 U.S. 371,
380-81 (2005), as long as an alternative construction exists
that is “fairly possible” and less troubling, Crowell v. Benson,
285 U.S. 22, 62 (1932). The canon rests not only on courts’
desire “to avoid the decision of constitutional questions” but
also on a “reasonable presumption that Congress did not
intend the alternative which raises constitutional doubts.”
Clark, 543 U.S. at 381. Avoidance, then, is a “means of giv-
ing effect to congressional intent,” id. at 381-82, resting on an
assumption that, between two plausible statutory construc-
tions, Congress meant the one that does not approach the
boundaries of “constitutionally protected liberties,” DeBar-
tolo, 485 U.S. at 575. In short, the avoidance canon rests on
a judicial presumption that Congress always intends to steer
clear of constitutional boundaries.
For purposes of this case, two important conclusions flow
from the avoidance canon’s rationales: first, the canon is
highly relevant at Chevron step one, and second, the canon
does not ultimately depend on the merits of implicated consti-
tutional claims.
Because the avoidance canon centers on a presumption
about congressional intent, it certainly pertains to the step one
MORALES-IZQUIERDO v. GONZALES 5301
determination of whether Congress intended to preclude the
agency’s interpretation. See Brown & Williamson, 529 U.S. at
126 (denying deference at step one, not because the statute
was entirely clear, but because “Congress ha[d] clearly pre-
cluded” the agency’s construction); MCI Telecommunications
Corp. v. American Telephone & Telegraph Co., 512 U.S. 218,
229 (1994) (holding that an agency’s interpretation should be
denied deference at step one, even in the face of some
ambiguity, if the proffered interpretation “goes beyond the
meaning that the statute can bear”); Edward J. DeBartolo
Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485
U.S. 568, 574 (1988) (holding that an interpretation should be
denied deference at step one if it is “clearly contrary to the
intent of Congress”); INS v. Cardoza-Fonseca, 480 U.S. 421,
448 n.31 (1987) (denying deference at step one even while
noting that the provision contained significant ambiguities, on
the ground that the statute clearly precluded the agency’s
interpretation).
The avoidance canon, thus, is properly applied at step one
of the Chevron analysis. While the majority may be correct
that the avoidance canon cannot be used to render an agency’s
interpretation “unreasonable” at Chevron step two, the canon
is unquestionably a “traditional tool of statutory interpreta-
tion” that may and should be used to determine whether Con-
gress intended to preclude the agency’s chosen interpretation.
See, e.g., Solid Waste Agency of N. Cook County v. U.S. Army
Corps of Eng’rs, 531 U.S. 159, 172-73 (2001) (denying defer-
ence because the agency’s interpretation “needlessly” raised
serious “constitutional issues” and because the Court assumed
“that Congress does not casually authorize administrative
agencies to interpret a statute to push the limit of congressio-
nal authority”); DeBartolo, 485 U.S. at 575 (rejecting an
agency’s interpretation at step one because it raised “serious
constitutional problems”). See also Lattab v. Ashcroft, 384
F.3d 8, 20n.5 (1st Cir. 2004) (specifically reserving the ques-
tion of whether “the rule of avoidance” would “lead to a dif-
5302 MORALES-IZQUIERDO v. GONZALES
ferent statutory construction” if it were applied “under the
first step of Chevron”).
The second conclusion to flow from the avoidance canon’s
rationales is that its application does not depend on this or any
court’s conclusions as to the merits of implicated constitu-
tional claims. Clark, 543 U.S. at 381 (“The canon is not a
method of adjudicating constitutional questions by other
means.”) (citing Adrian Vermeule, Saving Constructions, 85
Geo. L.J. 1945, 1960-61 (1997) (listing cases in which the
Supreme Court used the canon to avoid a constitutional ques-
tion only later to decide that the avoided application was not
unconstitutional)). Even if every constitutional challenge to
arise under the Attorney General’s regulation were ultimately
decided against the alien, the regulation should be rejected
under the avoidance canon if it approaches “the constitutional
danger zone” without a clear statement from Congress that it
intended to do so. Vermeule, 85 Geo. L.J. at 1960.
B
That the reinstatement regulation does, in fact, approach the
“constitutional danger zone” is beyond cavil. We have noted
specifically on more than one occasion that 8 C.F.R. § 241.8
“raises very serious due process concerns[.]” Castro-Cortez v.
INS, 239 F.3d 1037, 1048 (9th Cir. 2001), abrogated on other
grounds by Fernandez-Vargas v. Gonzales, 126 S. Ct. 2422,
2427 & n.5 (2006). See also Aguilar-Garcia v. Ridge, 90
Fed.Appx. 220, 220 (9th Cir. 2004); Arreola-Arreola v. Ash-
croft, 383 F.3d 956, 959 (9th Cir. 2004).
And several of our sister circuits have expressed similar
doubts as to the sufficiency of process afforded. See Lattab,
384 F.3d at 21 n.6 (noting the seriousness of the constitutional
claim given that the regulation “offers virtually no procedural
protections”); United States v. Charleswell, 456 F.3d 347, 356
n.10 (3d Cir. 2006) (noting that constitutional doubts relating
to the regulation “continue to cause a significant amount of
MORALES-IZQUIERDO v. GONZALES 5303
consternation”); Bejjani v. INS, 271 F.3d 670, 687 (6th Cir.
2002) (construing the regulation as having no retroactive
effect in part “to avoid a constitutional question”), abrogated
on other grounds by Fernandez-Vargas, 126 S. Ct. at 2427 &
n.5; Gomez-Chavez v. Perryman, 308 F.3d 796, 802 (7th Cir.
2002) (reserving the question of “what kind of procedures”
would be “necessary” for an alien who challenges the factual
basis for reinstatement); Alvarez-Portillo v. Ashcroft, 280
F.3d 858, 867 (8th Cir. 2002) (noting that additional proce-
dures might be due for an alien who challenges the applicabil-
ity of reinstatement), abrogated on other grounds by
Fernandez-Vargas, 126 S. Ct. at 2427 & n.5.
When we examine the reinstatement procedures more
closely, the constitutional concerns expressed by our court
and others become apparent. It is well-settled that the due pro-
cess clause of the Fifth Amendment applies to aliens in
removal proceedings. Arreola, 383 F.3d at 962; United States
v. Nicholas-Armenta, 763 F.2d 1089, 1090 (9th Cir. 1985).
Due process requires “a full and fair hearing of [the alien’s]
claims and a reasonable opportunity to present evidence on
his behalf,” Salgado-Diaz v. Ashcroft, 395 F.3d 1158, 1162
(9th Cir. 2005) (internal quotation marks omitted). Here, both
on a facial and as-applied examination, the reinstatement pro-
cess is well within the constitutional danger zone.
1
First, purely on a facial analysis, the reinstatement process
itself approaches the “constitutional danger zone” because it
does not provide any opportunity for the alien to challenge the
legality of a prior removal order. The inquiry is confined to
three determinations: (1) the identity of the alien, (2) that the
alien has previously been deported, and (3) that the alien ille-
gally reentered the United States. 8 C.F.R. § 241.8. Thus, an
alien that previously has been removed in absentia and with-
out due process has no means of raising his due process claim.
5304 MORALES-IZQUIERDO v. GONZALES
Even as to the three factual determinations to be made, the
Attorney General’s reinstatement procedure affords insuffi-
cient procedural protections, clearly approaching — if not
breaching — the constitutional danger zone. The reinstate-
ment procedure does not provide adequate means to contest
the predicates to reinstatement. As we observed in Castro-
Cortez, “an alien cannot receive a full and fair hearing unless
he has the right to place information into the administrative
record.” 239 F.3d at 1049. Under the regulation, however, the
alien is afforded the ability only to make “a written or oral
statement contesting the determination” to the officer who has
already decided to reinstate the order. 8 C.F.R. § 241.8(a)(3).
Thus, if an alien wishes to contest the fact that he was previ-
ously deported or that his reentry was illegal, he is not permit-
ted to do so with any extrinsic evidence. Under the
reinstatement regulation, the alien has no right to introduce
documents or other evidence to be considered by the officer;
the officer alone determines what will constitute the adminis-
trative record. Furthermore, the alien has no right to a hearing
at which he or she could call witnesses to testify, and the alien
is not afforded the right to review the immigration file upon
which the charges are based or to confront the evidence
assembled by the government in support of reinstatement.
The lack of due process in practice is illustrated by the rein-
statement cases that have found their way to the courts of
appeal. In the typical reinstatement case considered by our
circuit and our sister circuits, the alien has married a United
States citizen and makes an appointment with the agency to
discuss adjustment of status or an extension of a previously
granted work authorization. During the discussion, the officer
serves a Notice to Reinstate Prior Order and asks the alien to
fill out the form, which includes a checkbox to indicate
whether the alien wishes to make a statement. If the box is
checked “no,” that is the end of the matter, and the reinstate-
ment is effected without further ado. If the box is checked
“yes,” either the alien writes out a statement, or the officer
asks questions and writes down the answers. Then the rein-
MORALES-IZQUIERDO v. GONZALES 5305
statement is effected, and the alien usually is immediately
taken into custody.3 This procedure cannot be said to comport
3
See, e.g., Lino v. Gonzales, 467 F.3d 1077 (7th Cir. 2006) (alien mar-
ried to U.S. citizen with three U.S. citizen daughters served with reinstate-
ment notice during interview concerning adjustment of status); Fernandez-
Vargas v. Ashcroft, 394 F.3d 881, 883 (10th Cir. 2005) (alien married to
U.S. citizen served with reinstatement notice during interview concerning
adjustment of status and taken into custody); Berrum-Garcia v. Comfort,
390 F.3d 1158, 1161(10th Cir. 2004) (alien with U.S. citizen wife served
with notice of reinstatement of removal during interview concerning
adjustment of status); Lattab, 384 F.3d at 12 (alien married to U.S. citizen
with adjustment of status proceedings pending served with reinstatement
notice during visit to agency office to renew employment authorization
and taken into custody); Perez-Gonzalez v. Ashcroft, 379 F.3d 783, 785-86
(9th Cir 2004) (alien married to U.S. citizen served with reinstatement
notice and taken into custody during interview about petition to reapply
for admission as predicate to adjustment of status); Flores v. Ashcroft, 354
F.3d 727, 729 (8th Cir. 2003) (alien with U.S. citizen husband served with
reinstatement notice and taken into custody during adjustment of status
interview); Padilla v. Ashcroft, 334 F.3d 921, 923 (9th Cir. 2003) (alien
married to U.S. citizen served with reinstatement notice during interview
concerning adjustment of status and taken into custody); Gomez-Chavez
v. Perryman, 308 F.3d 796, 799 (7th Cir. 2002) (alien married to U.S. citi-
zen with work authorization served with notice to reinstate during inter-
view concerning adjustment of status); Gallo-Alverez v. Ashcroft, 266 F.3d
1123, 1127 (9th Cir. 2001) (alien married to U.S. citizen returns to INS
office at suggestion of District Director to renew work authorization,
served with Notice to Reinstate Prior Order and taken into custody);
Castro-Cortez, 239 F.3d at 1040 (alien [Castro-Cortez] married to U.S.
citizen served with reinstatement notice during interview concerning
adjustment of status and taken into custody); Id. at 1042 (alien [Funes-
Quevado] married to a U.S. citizen served with reinstatement notice dur-
ing interview concerning adjustment of status and taken into custody); Id.
at 1042-43 (alien [Rueda) married to a U.S. citizen served with reinstate-
ment notice during interview concerning adjustment of status and
arrested); Id. at 1043 (alien [Salinas-Sandoval] married to U.S. citizen
served with reinstatement notice during visit to agency to inquire about
progress on adjustment of status request); see also Wilson v. Gonzales,
2006 WL 3541717 (2d Cir. 2006) (alien business owner married to U.S.
citizen served with reinstatement notice during adjustment of status pro-
ceedings); Faiz-Mohammad v. Ashcroft, 395 F.3d 799, 801 (7th Cir. 2005)
(reinstatement notice served during adjustment of status proceedings);
Arevalo v. Ashcroft, 344 F.3d 1, 6 (1st Cir. 2003) (alien with U.S. citizen
children served with reinstatement order during sixth year of adjustment
of status proceedings).
5306 MORALES-IZQUIERDO v. GONZALES
with the requirements of notice and a hearing before a person
is deprived of liberty. Mathews v. Eldridge, 424 U.S. 319, 333
(1976). The very real and practical consequence of the Attor-
ney General’s decision is that families in the United States are
broken apart, with the father or mother summarily removed
from the country without any opportunity to contest the gov-
ernment’s charges.
In short, the regulatory procedure is so streamlined that it
deprives reentering aliens of any meaningful opportunity to
raise potentially viable legal, constitutional, or factual chal-
lenges to their removability. Based on these observations, it
is clear that the reinstatement process implemented by 8
C.F.R. § 241.8 falls within the constitutional danger zone.
2
When one specifically examines whether due process has
been afforded to Morales in this case, one can only conclude
that the procedures as applied to him place him within the
constitutional danger zone.
First, the due process problems inherent in the reinstate-
ment process affected Morales. He appeared at his interview
for adjustment of status. Without prior notice, he was pre-
sented with a Notice of Intent to Reinstate Prior Order. He
was not afforded a lawyer. Although he stated that he did not
read or write English and needed to have things explained in
Spanish in words he could understand, he was not afforded an
interpreter. According to the agent’s notes, Morales stated that
he had never been before an immigration judge, that he was
never informed that he was deported in absentia, and that the
signature on the notice card was not his. He was not afforded
the opportunity to examine the immigration file that served as
the basis for the reinstatement. Rather, despite the fact that he
contested the factual predicate for a reinstatement order to
issue, he was immediately arrested and taken into custody
after he finished answering the officer’s questions. Thus, in
MORALES-IZQUIERDO v. GONZALES 5307
his case, the facial due process concerns with the reinstate-
ment process were not merely theoretical; he experienced
them. He was not given the opportunity to contest the factual
basis for the reinstatement, even though he vigorously dis-
puted it. The procedures utilized in Morales’ reinstatement
hearing place him within the constitutional danger zone.
Second, because he was deported in absentia, Morales has
never seen an immigration judge at all. He never had a full
hearing on his prior deportation charges. Therefore, his situa-
tion is different from that involved in Arreola-Arreola, in
which we concluded that the alien had received due process
in his prior deportation hearing.
If Morales’ allegations are true — that he never received
notice of the deportation hearing at which he was deported in
absentia — then there can be no question that he has been
denied a full and fair hearing of his claims; he was, in fact,
denied any hearing at all. See Colmenar, 210 F.3d at 971
(holding that an asylum petitioner was denied a full and fair
hearing and a reasonable opportunity to present evidence on
his behalf where the IJ “acted as a partisan adjudicator” dur-
ing petitioner’s hearing). Thus, the procedures used in the
underlying deportation hearing independently place Morales
within the constitutional danger zone.4
4
It is, of course, unnecessary in avoidance analysis to determine whether
Morales has demonstrated prejudice. Because there is at least a serious
possibility that the reinstatement regulations violated Morales’s due pro-
cess rights, those regulations are inconsistent with presumed congressional
intent regardless of whether Morales has shown a remediable constitu-
tional violation in his case. Nevertheless, it is worth noting that Morales
has shown a significant likelihood of prejudice by contesting both the con-
stitutionality of the initial removal order and the factual basis of the rein-
statement order. His inability to present and develop those claims before
an immigration judge may well have resulted in an erroneous deportation.
5308 MORALES-IZQUIERDO v. GONZALES
3
Because the reinstatement procedures fall within the consti-
tutional danger zone, both facially and as applied to Morales,
the doctrine of constitutional avoidance requires a presump-
tion that Congress intended to afford Morales a full § 240
hearing before an immigration judge. This statutory construc-
tion, which is consistent with the plain words of § 240 and
with the overall structure of the INA, necessarily means that
the reinstatement regulation is ultra vires to the statute and
must be invalidated.
C
Rather than reaching the question of whether there has been
a deprivation of due process, the majority opinion contends
that any such violation can be addressed and remedied by the
court on a petition for habeas corpus, filed by the alien fol-
lowing removal. This contention, however, cannot be squared
with the Real ID Act of 2005’s limitation on the availability
of habeas review.5 In fact, the majority’s suggestion highlights
a second “constitutional danger zone” that the reinstatement
provision approaches: the Suspension Clause.
Section 106(a) of the Real ID Act, Pub. L. No. 109-13
(May 11, 2005), amending 8 U.S.C. § 1252(D)(5), provides:
Notwithstanding any other provision of law, . . . or
5
The majority opinion does not specify that it has habeas relief in mind,
but a writ of habeas corpus is the only imaginable remedy that an alien
could seek after removal from the country. By the time that a removal
order has been executed, motions to reopen and petitions for review would
no longer be available. Furthermore, neither a motion to reopen nor a peti-
tion for review would allow litigation of a fact-based (or as-applied) sub-
stantive constitutional challenge since the agency may not litigate such
challenges and the appellate courts may not conduct evidentiary hearings.
A removed alien, thus, has absolutely no means of raising an as-applied
constitutional challenge to his deportation, particularly after REAL-ID.
MORALES-IZQUIERDO v. GONZALES 5309
any other habeas corpus provision, . . . a petition for
review filed with an appropriate court of appeals in
accordance with this section shall be the sole and
exclusive means for judicial review of an order of
removal entered or issued under any provision of
[the INA].
“The [Real ID Act] eliminated habeas jurisdiction . . . over
final orders of deportation, exclusion, or removal.” Alvarez-
Barajas v. Gonzales, 418 F.3d 1050, 1052 (9th Cir. 2005).
Without § 240 procedural protections during the reinstatement
proceeding, this lack of post-removal habeas review raises
serious Suspension Clause concerns. The Attorney General’s
regulation, thus, approaches a second and independent “con-
stitutional danger zone” by denying reinstateable aliens any
constitutionally sufficient access to relief from detention and
deportation.
When there are essential disputed factual issues, the only
constitutionally adequate remedy is a “full and fair hearing,”
which includes “a reasonable opportunity [for the alien] to
present evidence on his behalf.” Ibarra-Flores v. Gonzales,
439 F.3d 614, 620 (9th Cir. 2006) (internal quotation marks
omitted). Because the Real ID Act vests exclusive habeas cor-
pus jurisdiction over final orders of removal in the courts of
appeal, the statute necessarily deprives the alien of a contested
evidentiary hearing with a resolution that is later subject to
appellate review based on a complete record. Courts of appeal
are not trial courts. Tippitt v. Reliance Standard Life Ins. Co.,
457 F.3d 1227, 1237 (11th Cir. 2006) (“[I]t is not the role of
appellate courts to make findings of fact.”); see also Icicle
Seafoods, Inc. v. Worthington, 475 U.S. 709, 714 (1986) (not-
ing that it was improper for a court of appeals to make “fac-
tual findings on its own”). In short, under the Real ID Act,
evidentiary hearings in habeas corpus review of final orders
of removal are eliminated. Thus, without a hearing before an
IJ, Morales will have no opportunity to litigate the contested
questions of fact. Even if habeas review were afforded in the
5310 MORALES-IZQUIERDO v. GONZALES
appellate courts, it would not be constitutionally sufficient
because it would not include an evidentiary hearing at which
Morales could participate.
In addition, even if a full post-removal evidentiary hearing
were permitted, Morales would be unable to attend and pre-
sent live testimony without committing the criminal act of
reentering the United States after removal, in violation 8
U.S.C. § 1326(a).
In short, the theoretical existence of a post-removal habeas
corpus remedy does not provide an opportunity for a full and
fair hearing of Morales’s claims before a neutral fact-finder.
Morales will never have a hearing on his claims. The only
method of avoiding this constitutionally problematic result is
to enforce the proper construction of the statute, requiring that
reinstatement proceedings be governed by § 240 procedures.
D
Given all of these considerations, even if the statutory lan-
guage were susceptible to another interpretation, the canon of
constitutional avoidance would require us to construe the stat-
ute to avoid these many constitutional concerns, interpreting
it instead as requiring that § 240 procedures be applicable to
reinstatement proceedings. That construction is at least “fairly
possible,” Crowell, 285 U.S. at 62, even if not textually and
structurally required, and that construction would avoid the
plethora of due process and Suspension Clause problems that
are inherent in the Attorney General’s regulation.
IV
Congress could hardly have been more clear. The INA
unambiguously requires that inadmissibility and deportability
determinations be made by an immigration judge pursuant to
the procedural protections outlined in INA § 240. Lest there
be any doubt, application of the traditional rules of statutory
MORALES-IZQUIERDO v. GONZALES 5311
construction, including the canon of constitutional avoidance,
dictate the same conclusion; we should not lightly assume that
Congress intended to authorize the Attorney General’s abro-
gation of so many aliens’ procedural rights. The Attorney
General’s action in stripping away the procedural protections
that had been in place for nearly forty-five years is in direct
conflict with the statute and cannot stand.
For those reasons, I respectfully dissent.