Aguilar–Aguilar v. Napolitano

• Decision Date: 03 December 2012
• Docket Number: No. 11–9565.,11–9565.
• Citation: 700 F.3d 1238
• Parties: Antonio AGUILAR–AGUILAR, Petitioner, v. Janet NAPOLITANO, Secretary of Homeland Security, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

700 F.3d 1238

Antonio AGUILAR–AGUILAR, Petitioner,

v.Janet NAPOLITANO, Secretary of Homeland Security, Respondent.

No. 11–9565.

United States Court of Appeals, Tenth Circuit.

Dec. 3, 2012.

Jaime Jasso, Law Office of Jaime Jasso, Westlake Village, CA, for Petitioner.

Stuart F. Delery, Acting Assistant Attorney General, Terri J. Scadron, Assistant Director, Civil Division, Greg D. Mack, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington D.C., for Respondent.

Before MATHESON, Circuit Judge, PORFILIO, Senior Circuit Judge, and BALDOCK, Circuit Judge.^*

BALDOCK, Circuit Judge.

In August 2010, the Department of Homeland Security (DHS) commenced “regular” removal proceedings against Petitioner Antonio Aguilar–Aguilar, a citizen of Mexico, pursuant to 8 U.S.C. § 1229a. In response to the Notice to Appear (NTA), Petitioner conceded his removability under 8 U.S.C. § 1182(a)(6)(A)(i) as “[a]n alien present in the United States without being admitted.” Petitioner informed the immigration judge (IJ), however, that he was in the process of seeking discretionary relief in the form of adjustment of status to lawful permanent resident as provided for in 8 U.S.C. § 1255(i). Over Petitioner's objection, DHS then moved pursuant to 8 C.F.R. § 239.2(c) to dismiss the NTA as improvidently issued and terminate Petitioner's § 1229a proceedings without prejudice. As an alien without lawful residency who had been convicted of an aggravated felony, Petitioner was deportable under 8 U.S.C. § 1227(a)(2)(A)(iii), and thus amenable to “expedited” removal proceedings under 8 U.S.C. § 1228(b). After the IJ granted DHS's motion, DHS commenced § 1228(b) proceedings against Petitioner and issued a Final Administrative Removal Order (FARO) directing his removal to Mexico. Consistent with § 1228(b)(5), the FARO found Petitioner “ineligible for any relief from removal that [DHS] may grant in an exercise of discretion.” ¹ His application for adjustment of status thwarted, Petitioner now asks us to review a FARO he claims DHS issued in violation of his Fifth Amendment right to procedural due process. Because the FARO constitutes a “final order of removal,” we have jurisdiction to review it under 8 U.S.C. § 1252(a)(1). Subsection (a)(2)(D) specifically empowers us to review Petitioner's constitutional claim. For the reasons stated herein, we deny review.

I.

The regulations applicable to § 1228(b) proceedings subject Petitioner to expedited removal if “clear, convincing, and unequivocal evidence” establishes he (1) is an alien; (2) has not been lawfully admitted for residency; (3) has been convicted of an aggravated felony (and that conviction is final); and (4) is deportable under § 1227(a)(2)(A)(iii). 8 C.F.R. § 238.1(b)(1)(i)-(iv), (d)(1)-(2). Petitioner does not contest these facts as found in the FARO, and thereby effectively concedes he meets the criteria for removal under § 1228(b). Petitioner does not deny that he entered and remained in the United States illegally. Nor does Petitioner deny that California convicted him in 2009 of performing a lewd act upon a child under the age of fourteen. This crime is defined in 8 U.S.C. § 1101(a)(43)(A) as an aggravated felony and renders Petitioner deportable under § 1227(a)(2)(A)(iii). Given these undisputed facts, § 1228(c) tells us Petitioner “shall be conclusively presumed to be deportable from the United States.” Moreover, Petitioner acknowledges DHS had “unfettered discretion to commence removal proceedings against [him] either in regular [§ 1229a] or expedited [§ 1228(b) ] proceedings.” Pet. Reply Br. at 7.

So why are we here? To begin, Petitioner claims DHS exercised its discretion once and for all when it instituted regular removal proceedings against him.

As a result [Petitioner] filed his application for [discretionary] relief as authorized by statutes and regulations enabling him to seek relief from removal despite the fact that he was deemed an aggravated felon. But before a decision [was] made on the merits of [his] application for relief, DHS arbitrarily elect[ed] to change the course of proceedings ... and ... place [Petitioner] in expedited removal proceedings solely to eliminate his statutory eligibility for relief from removal.

Id. Appearing before an IJ in El Paso, Texas by video teleconference from the Otero County Detention Center in New Mexico, Petitioner objected to DHS's motion to dismiss the NTA and terminate his § 1229a proceedings because such action would deprive him of a decision on his application for adjustment of status. The IJ said true enough, but not enough:

The fact that the DHS initially (and likely erroneously) chose to file [§ 1229a proceedings] in this case does not render [Petitioner] any less amenable to the administrative removal provisions of [§ 1228(b) ] and does not prevent the DHS from requesting termination in order to process [Petitioner] for removal pursuant to th[ese] provision[s]. The court finds there is good cause in this case to terminate removal proceedings and therefore will grant the DHS motion.

Supp. Admin. Rec. at 53. After the Board of Immigration Appeals (BIA) dismissed Petitioner's administrative appeal, he appealed to the Fifth Circuit Court of Appeals. But the Fifth Circuit ruled it lacked jurisdiction absent a final order of removal appealable pursuant to § 1252(a)(1). Aguilar–Aguilar v. Holder, No. 11–60715, Order (5th Cir. Dec. 7, 2011) (per curiam) (unpublished).

A week after the BIA dismissed Petitioner's appeal, DHS instituted expedited removal proceedings against him. A deportation officer (DO) served Petitioner pursuant to 8 C.F.R. § 238.1(b)(2) with a Notice of Intent (NOI). As the charging document, the NOI set forth DHS's preliminary determinations consistent with § 238.1(b)(1)(i)-(iv), and informed Petitioner of DHS's intent to issue a FARO directing his removal to Mexico without a hearing before an IJ (or appeal to the BIA). The NOI advised Petitioner of the procedural safeguards applicable to § 1228(b) proceedings. These safeguards, set forth in § 1228(b)(4) and 8 C.F.R. § 238.1(b)(2) & (c), included Petitioner's right to retain counsel, to inspect the evidence against him, to rebut the charges, and to request withholding of removal to a particular country if fearful of persecution or torture. The NOI advised Petitioner that to preserve these safeguards, he must respond to the charges or request an extension of time within 10 days of service as required by § 238.1(c)(1).

On the first section of the certificate of service form attached to the NOI, the DO marked a box indicating that he “explained and/or served this Notice of Intent to the alien in the Spanish language.” Admin. Rec. at 2. The DO also marked a box indicating “[t]he alien refused to acknowledge receipt of this document.” Id. Inexplicably, however, the DO also marked a box on the second section of the form indicating Petitioner “wish[ed] to contest and/or to request withholding of removal.” Id. The DO marked another box indicating Petitioner would request withholding because he feared torture in a country unspecified.² The DO did not mark any of the boxes in the second section indicating Petitioner wished to challenge DHS's preliminary determinations bearing upon his removability under § 1228(b), namely, that he was an alien unlawfully present in the United States and an aggravated felon deportable under § 1227(a)(2)(A)(iii). Nor did the DO mark any of the boxes in the third section of the form indicating Petitioner admitted the charges and conceded deportability.

Presumably because Petitioner refused to acknowledge receipt of the NOI, the DO issued the FARO to Petitioner at the same time he served him with the NOI. The FARO set forth DHS's findings of fact and conclusions of law consistent with the NOI's preliminary determinations and ordered Petitioner removed. Petitioner did not respond to the NOI, but instead timely appealed DHS's issuance of the FARO pursuant to § 1228(b)(3).³ On appeal, Petitionerargues DHS deprived him of procedural due process by denying him the right to object to the NOI:

Here, the [DO] did not observe [DHS's] own rules and regulations when [he] issued a [NOI] and a FARO on the same date, at the same time. In so doing, the [DO] deprived [Petitioner] of all of the opportunities guaranteed by the regulations, including among them most significantly, the opportunity to present evidence to convince [DHS] to terminate § 1228(b) proceedings and allow him to obtain a decision on the merits of his application[ ] for [discretionary] relief before [an IJ].

Pet. Reply. Br. at 10.

II.

We begin our discussion by summarily disposing of Petitioner's ongoing objection to the IJ's grant of DHS's motion to terminate his § 1229a proceedings. Undoubtedly, the IJ's decision resulted in DHS instituting § 1228(b) proceedings against Petitioner and obviating the possibility that he might receive an adjustment of status under § 1255(i). But because the IJ's decision did not result in a final order of removal, that decision was not and is not subject to judicial review.⁴See Hamilton v. Gonzales, 485 F.3d 564, 565–66 (10th Cir.2007). So the only way Petitioner can challenge the denial of his purported right to seek discretionary relief from removal is by arguing DHS denied him the opportunity to object to the NOI by issuing the FARO without waiting for the 10–day response period to elapse.

We also summarily dispose of DHS's suggestion that Petitioner either waived or forfeited his due process claim by failing to respond to the NOI. ⁵See United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (explaining that waiver is the “intentional relinquishment or abandonment of a known right” while forfeiture is the “failure to make the timely assertion of a right”). Petitioner did not waive § 1228(b)'s procedural safeguards by refusing to acknowledge service of the NOI. The DO...