Garcia De Rincon v. Department of Homeland Sec.

Decision Date21 August 2008
Docket NumberNo. 04-15411.,04-15411.
Citation539 F.3d 1133
PartiesErika GARCIA DE RINCON, Petitioner, v. DEPARTMENT OF HOMELAND SECURITY, Respondent. Erika Garcia de Rincon, Petitioner, v. Michael B. Mukasey,<SMALL><SUP>*</SUP></SMALL> Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

Jon Eric Garde, Esq., Law Offices of Jon Eric Garde, Las Vegas, NV, for the petitioner.

Luis E. Perez, Office of Immigration Litigation, United States Department of Justice, Washington, DC, for the respondents.

Appeal from the United States District Court for the District of Nevada; Philip M. Pro, District Judge, Presiding. D.C. No. CV-04-00024-PMP.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A95-441-701, A78-099-285.

Before: MARY M. SCHROEDER, JOHN M. WALKER, JR.,** and N. RANDY SMITH, Circuit Judges.

N. RANDY SMITH, Circuit Judge:

The Immigration and Nationality Act ("INA") contains a number of provisions limiting our jurisdiction to review orders that remove aliens who attempt to enter the United States unlawfully. Ranking among the most stringent is 8 U.S.C. § 1252(e). Section 1252(e) largely divests this court of jurisdiction to review the merits of an expedited removal order, which is an order that summarily removes an alien who attempts to gain entry into the United States by falsely claiming citizenship. The petitioner, Erika Garcia de Rincon ("de Rincon"), was subject to an expedited removal order in April 1999. Although we are sympathetic to the hardships resulting from de Rincon's subsequent removal from this country, § 1252(e) does not allow us to indulge those sympathies. We lack jurisdiction over her consolidated appeal and, accordingly, must dismiss.


De Rincon, a native and citizen of Mexico, first entered the United States in 1995. In 1997 she married Alberto Rincon, a lawful permanent resident; the two had a daughter born in Las Vegas about that time. Sometime in 1999, de Rincon traveled to Mexico to visit her ailing mother. When she returned to the United States in late April of 1999, she was detained at the border. After being placed in secondary inspection, she was interviewed by an Immigration Officer on April 23, 1999. During that interview, which according to the record was conducted in her native Spanish, de Rincon was questioned about the circumstances of her re-entry. She admitted that she had falsely claimed to be a United States citizen (representing that she was born in Los Angeles) in an attempt to gain entry into the country. She likewise admitted that she knew it was illegal to misrepresent her citizenship, and that she had no documentation to gain lawful entry.

Based on these statements, an expedited removal order was issued the same day, deeming de Rincon removable as an alien that had falsely attempted to gain admission as a United States citizen. De Rincon maintains, in an affidavit later prepared in support of her appeal, that during the April 1999 interview she "did not understand many of the questions or what they were talking about.... I was only 22 years old and I was very frightened and confused.... I did not know if they were even going to let me go." Premised on the summary nature of the expedited removal proceedings, de Rincon alleges that she was denied due process. However, her affidavit does not address, and so does not dispute, that she made a false representation of United States citizenship during her attempted April 1999 entry.

Within days of her expedited removal, de Rincon nonetheless re-entered the United States unlawfully and returned to her husband and daughter in Las Vegas. Between 1999 and 2002, de Rincon and her husband purchased a home in Las Vegas, and had another child, a son. Both she and her husband worked and raised their children together during that time period. Other than her unlawful entries into the United States, de Rincon has been lawabiding and productive.

On March 29, 2002, de Rincon filed a Form I-485 Application for Adjustment of Status based on her husband's filing of an approved I-130 visa on her behalf. In conjunction with these papers, de Rincon filed an I-212 Application for Permission to Reapply for Admission into the United States after Deportation or Removal. De Rincon appeared for a formal interview before an immigration officer on December 16, 2003, not knowing that a search of her records had found the April 23, 1999 expedited removal order. Immigrations and Customs Enforcement ("ICE") issued an immediate arrest warrant and she was placed into custody.

On January 6, 2004, de Rincon executed a sworn statement taken by ICE regarding her immigration history. In that statement, she admits that she reentered unlawfully after her April 23, 1999 removal. ICE immediately reinstated her prior expedited removal order. The next day, January 7, 2004, ICE issued a warrant of removal and deportation for de Rincon, which she refused to sign. The day after that, January 8, 2004, de Rincon received a decision denying her application for adjustment of status based on her false claim of citizenship, a non-waivable ground for removal. She was removed from the United States that evening. A petition for review with the Department of Homeland Security ("DHS") (No. 04-15411). followed the reinstatement of her removal order.

On January 8, 2004, de Rincon filed a habeas petition in the District of Nevada challenging her reinstatement order, collaterally attacking the underlying expedited removal order and requesting a stay of removal. A magistrate judge denied the request for a stay; a district court judge subsequently granted the stay, but not before de Rincon had already been removed to Mexico. On February 19, 2004, the district court issued an order addressing the remaining issues in de Rincon's habeas petition. It held, primarily, that it lacked jurisdiction to review de Rincon's reinstated removal order pursuant to 8 U.S.C. § 1231(a)(5). But, instead of complete dismissal, it transferred de Rincon's habeas petition to this court pursuant to 28 U.S.C. § 1631. Noting that de Rincon's removal imposed the "draconian result" of barring her from reapplying for admission for the next twenty years, the district court opined that the Ninth Circuit might conclude that "minimum due process concerns may be triggered." De Rincon's transferred habeas petition was assigned No. 05-70555 in this court. Acknowledging that this court cannot take evidence that would purport to support de Rincon's claim that the underlying expedited removal order violated due process, de Rincon now asks that we re-transfer the habeas petition to the district court for an evidentiary hearing. The appeal involving her habeas petition was consolidated with her petition for review of the ICE's reinstated removal order; both appeals are before us now.


This court reviews questions of jurisdiction de novo. Burlington N. Santa Fe Ry. v. IBT Local 174, 203 F.3d 703, 707 (9th Cir.2000) (en banc). The court also reviews due process claims and questions of law raised in immigration proceedings de novo. Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir.2004).


Both of de Rincon's two appeals seek to collaterally attack her 1999 expedited removal order, albeit through alternative means. In her first appeal, de Rincon petitions directly for review of ICE's reinstated removal order and seeks to collaterally attack the underlying expedited removal order on due process grounds. In her second appeal, de Rincon asks that we transfer her habeas petition back to the district court where it could conduct an evidentiary hearing and reach the merits of her claim that she was denied due process during the proceedings that led to her April 1999 expedited removal. In both instances, jurisdictional bars prevent us from providing de Rincon's requested relief.

A. This court lacks jurisdiction to hear de Rincon's collateral attack on her reinstated expedited removal order.

Two statutes limit this court's jurisdiction over certain final orders of removal — 8 U.S.C. §§ 1231(a)(5) and 1231(e). These provisions preclude our review of the ICE's January 7, 2004 reinstated removal order and the underlying expedited removal order itself, at least with respect to the type of generalized due process claim de Rincon raises.

The first of these statutes, § 1231(a)(5), limits the scope of this court's review of reinstated removal orders. It states in full:

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.

Id. (emphasis added). This court, sitting en banc, recently examined the scope of § 1231(a)(5) in Morales-Izquierdo v. Gonzales, 486 F.3d 484, 495-97 (9th Cir.2007) (en banc). Morales-Izquierdo held that the regulations implementing § 1231(a)(5), which allow an immigration officer to reinstate removal orders without a full hearing before an immigration judge, satisfied due process. Id. The court assumed jurisdiction to review such orders, but limited its review to the three discrete inquiries an immigration officer must make in order to reinstate a removal order: (1) whether the petitioner is an alien; (2) whether the petitioner was subject to a prior removal order, and (3) whether the petitioner reentered illegally. Id. at 495 (citing reinstatement regulations at 8 C.F.R. § 241.8). Although Morales-Izquierdo left open the possibility that "individual petitioners may raise procedural defects in their particular cases," it held that the regulations survived a facial due process challenge. Id. at 496. The...

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