Rene Severiano-Badillo v. Merrick Garland

FILED
NOT FOR PUBLICATION
AUG 17 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RENE SEVERIANO-BADILLO, No. 19-73115
Petitioner, Agency No. A094-951-130
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 12, 2021**
Seattle, Washington
Before: BEA, BRESS, and VANDYKE, Circuit Judges.
Rene Severiano-Badillo, a native and citizen of Mexico, illegally entered the
United States and was ordered removed in 2011. He reentered illegally and was
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
apprehended and ordered removed again by reinstatement of his 2011 removal
order. He now appeals the constitutionality of the Department of Homeland
Security’s (“DHS”) removal process.
We review constitutional questions de novo. See Garcia de Rincon v.
DHS, 539 F.3d 1133, 1137–38 (9th Cir. 2008). We deny his petition for review
and his accompanying motion to stay removal.
Severiano-Badillo contends that the Fifth and Eighth Amendments require
DHS to consider whether reinstatement is proportionate to his crime of illegally
entering the United States. “Deportation is strictly a Congressional policy question
in which the judiciary will not intervene as long as procedural due process
requirements have been met.” LeTourneur v. INS, 538 F.2d 1368, 1370 (9th Cir.
1976). Severiano-Badillo does not assert that he did not receive notice that his
2011 removal order would be reinstated, or that he did not have a fair and
reasonable hearing. “This [C]ourt has also held that deportation is not cruel and
unusual punishment under the Eighth Amendment even though the penalty may be
severe.” Id. Thus, neither the Fifth nor Eighth Amendment requires DHS to
consider whether reinstatement is proportionate.
Severiano-Badillo also argues that the DHS’s policy of removing aliens
under 8 U.S.C. § 1231(a)(5), the Immigration and Nationality Act’s (“INA”)
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reinstatement provision, was arbitrary and capricious in this case, because it does
not permit the Immigration Judge to review the DHS’s reinstatement order. This
Court has held that 8 C.F.R. § 241.8—the regulation implementing 8 U.S.C.
§ 1231(a)(5)—is a “valid interpretation of the INA.” Morales-Izquierdo v.
Gonzales, 486 F.3d 484, 495 (9th Cir. 2007) (en banc). Reinstatement “can be
performed like any other ministerial enforcement action.” Id. at 491. Therefore,
delegating that reinstatement inquiry to the DHS, rather than to the Immigration
Judge, was not arbitrary and capricious. See id. at 495.
Additionally, 8 C.F.R § 241.8 provides “significant procedural safeguards”
for reinstatement decisions. Morales-Izquierdo, 486 F.3d at 495. Severiano-
Badillo does not argue that DHS failed to satisfy these procedural safeguards.
Accordingly, the reinstatement process in this case was not arbitrary and
capricious.
For these reasons, Severiano-Badillo’s petition for review and his
accompanying motion to stay removal are DENIED.
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