Morales-Izquierdo v. Gonzales

• Decision Date: 06 February 2007
• Docket Number: No. 03-70674.,03-70674.
• Citation: 486 F.3d 484
• Parties: Raul MORALES-IZQUIERDO, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

486 F.3d 484

Raul MORALES-IZQUIERDO, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 03-70674.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 13, 2005.

Proceedings Stayed January 5, 2006.

Resubmitted June 22, 2006.

Filed February 6, 2007.

Amended May 8, 2007.

Robert Pauw, Gibbs Houston Pauw, Seattle, WA, for the petitioner.

Peter D. Keisler, Assistant Attorney General, Civil Division; Jonathan F. Cohn, Deputy Assistant Attorney General; Donald E. Keener, Deputy Director, Office of Immigration Litigation; John Andre, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, Washington, DC, for the respondent.

Trina A. Realmuto and Nadine K. Wettstein, American Immigration Law Foundation, Washington, DC, as amici curiae in support of the petitioner.

On Petition for Review of an Order of the Board of Immigration Appeals. Ins No. A79-166-816.

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.

ORDER AND AMENDED OPINION

KOZINSKI, Circuit Judge.

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

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 official.¹ Until 1997, removal orders could only be reinstated by 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 inspection. 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 hearing, he was ordered removed in absentia.³ Morales claims he never received notice of the hearing date, but the record 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 misrepresenting 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 reinstatement 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). We took the case en banc. See Morales-Izquierdo v. Gonzales, 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.Appx. 536, 539-40 (6th Cir.2005) (mem.), cert. denied, ___ U.S. ___, 127 S.Ct. 62, 166 L.Ed.2d 56 (2006). No other court has reached a contrary conclusion.

A. In determining whether 8 C.F.R. § 241.8 is valid, we apply the familiar Chevron two-step approach. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Under Chevron step one, we ask "whether Congress has directly spoken to the precise question at issue," id. at 842, 104 S.Ct. 2778 — i.e., whether DHS can reinstate a prior removal order without a full-blown hearing before an immigration judge.

Here, two sections of the INA are potentially implicated. The first, INA § 240, titled "Removal proceedings," requires that "[a]n immigration judge shall conduct proceedings 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 reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated 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.

Morales argues that Congress spoke clearly as to 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 functionally 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 Reinstatement is not among those proceedings explicitly exempted.

Morales' argument that the failure to exempt reinstatement 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 removability." Lattab, 384 F.3d at 18 (citing Alexander v. Sandoval, 532 U.S. 275, 288-91, 121 S.Ct. 1511, 149 L.Ed.2d 517 (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 scheme." FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) (quoting Davis v. Mich. Dep't of Treasury, 489 U.S. 803, 809, 109 S.Ct. 1500, 103 L.Ed.2d 891 (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.

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. citizens 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)....