Garcia-Villeda v. Mukasey

• Decision Date: 08 July 2008
• Docket Number: Docket No. 07-0283-ag.
• Citation: 531 F.3d 141
• Parties: Horacio H. GARCIA-VILLEDA, Petitioner, v. Michael B. MUKASEY,<SMALL><SUP>*</SUP></SMALL> Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

531 F.3d 141

Horacio H. GARCIA-VILLEDA, Petitioner, v. Michael B. MUKASEY,^* Attorney General of the United States, Respondent.

Docket No. 07-0283-ag.

United States Court of Appeals, Second Circuit.

Argued: March 25, 2008.

Decided: July 8, 2008.

Michael P. DiRaimondo, DiRaimondo & Masi, LLP, Melville, NY, for Petitioner.

Scott Rempell, Trial Attorney, Office of Immigration Litigation, Jeffrey S. Bucholtz, Acting Assistant Attorney General, Civil Division, Linda S. Wernery, Assistant Director, U.S. Department of Justice, Washington, DC, for Respondent.

Before: JACOBS, Chief Judge, and FEINBERG and HALL, Circuit Judges.

FEINBERG, Circuit Judge:

Petitioner Horacio H. Garcia-Villeda seeks review of a December 28, 2006 order of the Department of Homeland Security ("DHS"), Immigration and Customs Enforcement ("ICE"), reinstating a prior order of deportation for illegal entry, entered against petitioner in August 1996. The issues before us are whether elimination of the requirement of a hearing before an immigration judge, pursuant to 8 C.F.R. § 241.8 (2001), is consistent with the reinstatement of removal statute, 8 U.S.C. § 1231(a)(5); whether the reinstatement of removal procedure set forth in 8 C.F.R. § 241.8, both as applied in this case and on its face, comports with the Due Process Clause of the Fifth Amendment; whether the original deportation order could be constitutionally reinstated despite allegations of due process violations in the original proceeding; and whether the ICE properly reinstated the underlying deportation order without first adjudicating petitioner's pending applications for Waiver of Grounds of Excludability and for Permission to Reapply for Admission.

I. BACKGROUND

Petitioner, a native and citizen of Honduras, was apprehended for entering the United States (hereafter "U.S.") without inspection in August 1996. On August 27, 1996, he was ordered deported by an immigration judge, a ruling he did not appeal to the Board of Immigration Appeals ("BIA") or contest in a federal court. A warrant for removal was issued, and petitioner was deported on September 5, 1996.

Petitioner reentered the U.S. illegally in May 1997. In June 1998, he married Martha Vienna Paz, a U.S. citizen, with whom he now has two children.

On December 28, 2006, petitioner appeared for an interview before an ICE officer to discuss his immigration status. During the interview, petitioner admitted both his illegal reentry into the U.S. and his earlier deportation in September 1996. On the same day, after the interviewing officer verified petitioner's statements and his identity, the Acting Supervisory Deportation Officer reinstated the prior deportation order. Since then, petitioner has been detained in Elizabeth, New Jersey.

In January 2007, petitioner was interviewed to determine whether he had a reasonable fear of persecution in his country of origin, which would entitle him to withholding of removal and protection under the Convention Against Torture. After a hearing, in March 2007, an immigration judge ruled against petitioner. The BIA affirmed in July 2007, and petitioner did not seek review of the BIA's decision.

Thereafter, petitioner filed a timely petition for review of the December 28, 2006 reinstatement of removal order.

II. DISCUSSION

In 1996, as part of a sweeping overhaul of the immigration laws, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act, Pub.L. No. 104-208, div. C, 110 Stat. 3009 ("IIRIRA"). The IIRIRA, among other things, repealed § 242(f) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1252(f) (repealed 1996), and adopted INA § 241(a)(5), 8 U.S.C. § 1231(a)(5) (hereafter "INA § 241(a)(5)" or the "reinstatement of removal statute").¹ This section became effective on April 1, 1997.

In 1997, the Attorney General aligned the implementing regulations with the new statutory language, by replacing 8 C.F.R. § 242.23(b) (repealed 1997) — which required a reinstatement hearing before an immigration judge — with 8 C.F.R. § 241.8, which changes the hearing requirement.² Under 8 C.F.R. § 241.8, once the immigration officer has established that the alien is indeed an illegal reentrant subject to the reinstatement of removal statute, the officer must order the alien "removed under the previous order of exclusion, deportation, or removal in accordance with section 241(a)(5) of the [INA]." 8 C.F.R. § 241.8(c).

Petitioner argues that the regulation is an impermissible construction of the statute, because it contravenes the explicit mandate of INA § 240, 8 U.S.C. § 1229a(a)(1), that removal proceedings be conducted before an immigration judge. Petitioner also challenges the regulation on constitutional grounds, alleging that, both on its face and as applied in his case, it violates the Due Process Clause of the Fifth Amendment. In addition, petitioner claims that the underlying deportation order itself deprived him of due process and thus was not subject to reinstatement. Finally, petitioner contends that, even if the regulation is valid, the ICE was precluded from reinstating the earlier order without first adjudicating petitioner's then-pending petitions for Waiver of Grounds of Excludability and for Permission to Reapply for Admission, which, he believes, would have been successful. We address each argument in turn.

A. Challenge to the Validity of 8 C.F.R. § 241.8.

Section 240 of the INA, entitled "Removal proceedings," requires that "[a]n immigration judge shall conduct proceedings for deciding the inadmissibility or deportability of an alien." 8 U.S.C. § 1229a(a)(1). The section further provides:

Unless otherwise specified in this chapter, a proceeding under this section shall be the sole and exclusive procedure for determining whether an alien may be admitted to the United States or, if the alien has been so admitted, removed from the United States.

8 U.S.C. § 1229a(a)(3) (emphasis added). Petitioner claims that this language clearly expresses congressional intent to extend the requirement of a hearing before an immigration judge to all proceedings — including reinstatement of prior deportation orders — that result in removal of an alien from the U.S. Petitioner argues that, since Congress has not specifically exempted reinstatement proceedings from the hearing requirement, and since a hearing was provided to aliens subject to reinstatement for over four decades under the prior statute and the implementing regulations, the procedure prescribed by INA § 240 is the "sole and exclusive procedure for determining" whether an earlier deportation order should be reinstated. In petitioner's view, the implementing regulation that confers upon immigration officers, not judges, the authority to reinstate without a hearing a prior deportation order against an illegal reentrant is in direct conflict with INA § 240 and thus invalid.

To assess the validity of the regulation at issue, we apply the two-prong test enunciated in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Under the first prong of Chevron, we determine "whether Congress has directly spoken to the precise question at issue," id. at 842, 104 S.Ct. 2778, i.e., here, whether a prior removal order may be reinstated without a full hearing before an immigration judge. "If the intent of Congress is clear, that is the end of the matter. . . ." Id. However, if the statute is found to be ambiguous, the question for us under the second prong "is whether the agency's answer is based on a permissible construction of the statute." Id. at 843, 104 S.Ct. 2778.

The validity of the regulation implementing the reinstatement of removal statute is a matter of first impression in this circuit, but we are not without guidance on the question. Every other circuit that has considered the issue has upheld the regulation as a valid interpretation of the INA. See Lorenzo v. Mukasey, 508 F.3d 1278, 1283-84 (10th Cir.2007); Morales-Izquierdo v. Gonzales, 486 F.3d 484, 489-95 (9th Cir.2007) (en banc); De Sandoval v. U.S. Att'y Gen., 440 F.3d 1276, 1280-83 (11th Cir.2006); Ochoa-Carrillo v. Gonzales, 437 F.3d 842, 846 (8th Cir.2006); Lattab v. Ashcroft, 384 F.3d 8, 17-20 (1st Cir.2004); see also Tilley v. Chertoff, 144 Fed.Appx. 536, 539-40 (6th Cir. Aug.15, 2005) (unpublished).

(1) Chevron Step One. Petitioner correctly points out that INA § 241(a)(5) does not specify the procedures to be followed by the Attorney General in reinstating an earlier deportation order. However, petitioner errs in assuming that, because Congress did not explicitly specify those procedures, it intended that reinstatement proceedings be governed by INA § 240.

Petitioner's primary reliance on the direction of INA § 240 that a full-fledged hearing before an immigration judge "be the sole and exclusive procedure for determining whether an alien" will be deported from the U.S., 8 U.S.C. § 1229a(a)(3),³ is misplaced. This provision requires a formal hearing in removal proceedings that concern only aliens already admitted to the U.S. Petitioner has twice entered the U.S. illegally, but has never been "admitted" to this country. In any event, such a hearing is not "the sole and exclusive procedure" for removability determinations, when Congress has "otherwise specified." For reinstatement, Congress did in fact specify otherwise: in INA § 241(a)(5), it authorized the Attorney General to reinstate prior removal orders based on the simple finding that an alien entered the U.S. illegally after having been deported.⁴

In addition, the placement of the reinstatement of removal statute in INA § 241, under the title "Detention and removal of aliens ordered removed," separate from INA § 240, which is entitled "Removal proceedings," indicates "a congressional intention to treat reinstatement determinations differently from first-instance determinations of removability." Lattab, 384 F.3d at 18 ...