Alvarado-Herrera v. Garland

• Decision Date: 13 April 2021
• Docket Number: No. 18-70191,18-70191
• Citation: 993 F.3d 1187
• Parties: Israel ALVARADO-HERRERA, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

993 F.3d 1187

Israel ALVARADO-HERRERA, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 18-70191

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 16, 2020 San Francisco, California

Filed April 13, 2021

Stacy Tolchin (argued) and Megan Brewer, Law Offices of Stacy Tolchin, Los Angeles, California, for Petitioner.

Dana M. Camilleri (argued), Trial Attorney; Sabatino F. Leo, Senior Litigation Counsel; Anthony P. Nicastro, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Paul J. Watford, Michelle T. Friedland, and Eric D. Miller, Circuit Judges.

WATFORD, Circuit Judge:

Israel Alvarado-Herrera, a native and citizen of Honduras, reentered the United States illegally in 2017. The Department of Homeland Security (DHS) ordered him removed to Honduras after reinstating an earlier removal order that had been entered against him in 2013. Because Alvarado-Herrera expressed a fear of returning to Honduras, an asylum officer conducted a screening interview to determine whether he reasonably feared persecution or torture in his home country. The asylum officer determined that he did not have a reasonable fear of such harm, and an immigration judge affirmed that determination. Alvarado-Herrera petitions for review of the immigration judge's decision on several grounds, all of which we reject with one exception: We agree with Alvarado-Herrera that the immigration judge's finding that he lacks a reasonable fear of torture is not supported by substantial evidence.

I

Alvarado-Herrera first entered the United States illegally in May 2013. He was apprehended shortly after crossing the southern border and placed in what are known as expedited removal proceedings. Expedited removal proceedings involve, as the name suggests, a streamlined process through which certain non-citizens—such as those apprehended at or near the border soon after entry—may be removed from the United States without a hearing before an immigration judge. See 8 U.S.C. § 1225(b)(1). Expedited removal orders are entered by DHS immigration officers, not by immigration judges, and judicial review of such orders is severely curtailed. § 1252(a)(2)(A), (e). DHS entered an expedited removal order against Alvarado-Herrera and removed him to Honduras pursuant to that order in June 2013.

In December 2017, Alvarado-Herrera reentered the United States illegally and was again apprehended shortly after crossing the southern border. Rather than issue a second expedited removal order, DHS decided to reinstate his earlier 2013 removal order. Congress has authorized reinstatement of prior removal orders as another streamlined process through which certain non-citizens may be removed from the country. The statute authorizing reinstatement provides as follows:

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.

8 U.S.C. § 1231(a)(5).

To reinstate a prior removal order, an immigration officer must find that the individual in question: (1) is not a citizen; (2) was removed or voluntarily departed while subject to a prior removal order; and (3) reentered the United States illegally. 8 C.F.R. § 241.8(a) ; see Morales-Izquierdo v. Gonzales , 486 F.3d 484, 495 (9th Cir. 2007) (en banc). In this case, an immigration officer made each of the required findings against Alvarado-Herrera and reinstated his 2013 removal order.

Although § 1231(a)(5) states that a non-citizen whose prior removal order has been reinstated "is not eligible and may not apply for any relief under this chapter," regulations issued by DHS's predecessor agency carve out exceptions to that seemingly categorical prohibition. A non-citizen may be entitled to apply for withholding of removal or protection under the Convention Against Torture (CAT) at a hearing held before an immigration judge. But to obtain that hearing, a non-citizen must first pass a screening interview conducted by an asylum officer, during which the non-citizen must show that he or she has a "reasonable fear" of persecution or torture in the designated country of removal. 8 C.F.R. §§ 208.31(c), 241.8(e). If the asylum officer determines that the non-citizen has established a reasonable fear, the non-citizen is placed in "withholding only" proceedings before an immigration judge, during which the judge will hold a hearing on whether to grant the non-citizen withholding of removal or protection under CAT. §§ 208.2(c)(2)–(3), 208.31(e).

If the asylum officer determines that the non-citizen has not established a reasonable fear, the non-citizen may request review of that determination by an immigration judge. § 208.31(g). During the review hearing, the immigration judge conducts a de novo review of the record prepared by the asylum officer and may (but need not) accept additional evidence and testimony from the non-citizen. Bartolome v. Sessions , 904 F.3d 803, 812–13 (9th Cir. 2018). If the immigration judge affirms the asylum officer's adverse determination, as occurred here, the non-citizen may file a petition for review in the appropriate circuit court of appeals. Ayala v. Sessions , 855 F.3d 1012, 1015–16 (9th Cir. 2017).

Alvarado-Herrera expressed a fear of persecution and torture if he were returned to Honduras. As Alvarado-Herrera explained during his interview with the asylum officer, that fear was based on an incident in Honduras several years earlier in which a group of armed 18th Street gang members—dressed as police officers and displaying police badges—shot and killed the business owner for whom Alvarado-Herrera worked as a bodyguard, apparently in retaliation for the business owner's refusal to pay the gang's extortion demands. Alvarado-Herrera and his fellow bodyguards returned fire, killing one of the gang's members. One of the other bodyguards also died during the attack. Alvarado-Herrera himself suffered gunshot wounds and was hospitalized for two days. After leaving the hospital, he went into hiding out of fear that the gang would seek to kill him in retaliation for the death of one of its members during the attack. Two of Alvarado-Herrera's fellow bodyguards who survived the attack were later killed, allegedly by the gang, and Alvarado-Herrera learned from acquaintances that the gang continued to look for him.

The asylum officer found Alvarado-Herrera's account credible but determined that he had not established a reasonable fear of persecution or torture. As to persecution, the asylum officer found that Alvarado-Herrera failed to establish that the gang would target him because of a protected characteristic (race, religion, nationality, membership in a particular social group, or political opinion). As to torture, the asylum officer found that Alvarado-Herrera failed to establish that retaliatory violence from the gang would be perpetrated by or with the consent or acquiescence of a public official. Alvarado-Herrera requested review of the asylum officer's determination by an immigration judge, but the judge affirmed the determination on the same grounds given by the asylum officer.

Alvarado-Herrera filed a timely petition for review of the immigration judge's decision. We have jurisdiction to review Alvarado-Herrera's constitutional and legal challenges to the reasonable fear screening process as well as his factual challenge to the evidentiary support for the immigration judge's decision. See 8 U.S.C. § 1252(a)(1), (a)(2)(D), (a)(5), (b)(9) ; Ayala , 855 F.3d at 1018. As explained immediately below, however, we lack jurisdiction to review his collateral attacks on the validity of the 2013 expedited removal order.

II

Alvarado-Herrera contends that DHS could not reinstate his 2013 expedited removal order because the order failed to comply with two of the requirements imposed by the regulation governing expedited removal, 8 C.F.R. § 235.3.

First, the regulation states that an expedited removal order "must be reviewed and approved by the appropriate supervisor before the order is considered final." § 235.3(b)(7). To implement that requirement, the form on which DHS issues expedited removal orders, Form I-860, has a designated line for the name and title of the supervisor granting approval, as well as a separate line for the supervisor's signature that states, "Signature of supervisor, if available." Directly below the signature line is a box accompanied by text that reads: "Check here if supervisory concurrence was obtained by telephone or other means (no supervisor on duty)." On Alvarado-Herrera's 2013 expedited removal order, the name and title of the supervisor granting approval is typed in, but the line for the supervisor's signature is blank. Instead, the box below is checked to indicate that supervisory approval was obtained by telephone or other means. Alvarado-Herrera contends that his expedited removal order is not final (and is therefore invalid) because it does not contain the supervisor's signature.

Second, the regulation states that, "[a]fter obtaining supervisory concurrence in accordance with paragraph (b)(7) of this section, the examining immigration official shall serve the alien with Form I-860 and the alien shall sign the reverse of the form acknowledging receipt." § 235.3(b)(2)(i). The record shows that an immigration officer served Alvarado-Herrera with Form I-860. Alvarado-Herrera contends that his expedited removal order is invalid because the record does not contain the back of Form I-860, which precludes us from determining whether he signed the form to acknowledge receipt, as the regulation...