Gonzalez v. U.S. Attorney Gen.
| Decision Date | 27 January 2021 |
| Docket Number | No. 19-14752,19-14752 |
| Parties | FRANCISCO JAVIER GONZALEZ, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
[DO NOT PUBLISH]
Non-Argument Calendar
Petition for Review of a Decision of the Department of Homeland Security
Before BRANCH, LAGOA, and BRASHER, Circuit Judges.
Francisco Javier Gonzalez attempted to enter the United States in 2001 by presenting a fraudulent visa at inspection at a Houston airport. Shortly thereafter, immigration officials served Gonzalez with an expedited order of removal and removed him to Mexico. At some point, Gonzalez returned to the United States. In 2019, the government reinstated the 2001 expedited order of removal. In this petition for review, Gonzalez raises three challenges to the reinstatement order. First, he argues that the 2001 expedited order of removal was invalid and, thus, unenforceable. Second, he argues that the government arbitrarily violated the regulations governing reinstatement of removal. And third, Gonzalez argues that those violations deprived him of his Fifth Amendment right to due process. Because we lack jurisdiction to review the validity of the 2001 expedited order of removal, the government did not violate any regulations governing reinstatement, and the government did not violate Gonzalez's constitutional rights, we dismiss the petition in part and deny it in part.
Gonzalez is a native and citizen of Mexico. In July 2000, Gonzalez lawfully entered the United States on a B2 visitors visa with authorization to stay until January 24, 2001. He stayed several months beyond the authorized date, returning to Mexico in June 2001. Thereafter, he unsuccessfully sought another legal visa to the United States. When his requests were declined, he purchased a visa from a "man in Tijuana" for $1,500.
Gonzalez then flew to Houston, Texas. Gonzalez presented his visa to immigration officials who noted that the visa appeared questionable and later determined it was fraudulent. During a secondary inspection interview conducted in Spanish, Gonzalez claimed that he did not know the visa was fraudulent, but he admitted that the man who sold him the visa instructed Gonzalez "not to tell officials that [he] had bought it." At the end of the inspection, immigration authorities served Gonzalez with a Form I-860 Notice and Order of Expedited Removal under 8 U.S.C. § 1225(b)(1).1 The Notice charged Gonzalez as subject to expedited removal because he sought admission to the United States with a fraudulent document under 8 U.S.C. § 1182(a)(6)(C)(i), and lacked a valid entry document under 8 U.S.C. § 1182(a)(7)(A)(i)(I). Gonzalez was removed from the United States on December 15, 2001.
At some point, Gonzalez returned to the United States, married, and had children. Gonzalez's spouse applied for a green card for Gonzalez, which was approved on January 23, 2009. Gonzalez eventually applied for adjustment ofstatus to a legal permanent resident, but his application was denied on May 5, 2018 due to inadmissibility.2
The Department of Homeland Security ("DHS") requested that Gonzalez appear for reinstatement proceedings, which occurred on November 8, 2019. Gonzalez appeared with counsel. DHS served Gonzalez with notice of its intent to reinstate the 2001 expedited order of removal.3 DHS charged that Gonzalez was subject to a prior order of removal and that he unlawfully reentered the United States on an unknown date. DHS officials provided Gonzalez an opportunity to respond to the notice, but Gonzalez invoked his right to remain silent and declined to answer any questions, including whether he feared persecution upon removal. After reviewing the evidence, DHS ordered reinstatement of the 2001 expedited order of removal. Gonzalez was released under an order of supervision pending his removal from the United States. Gonzalez timely petitioned for review of DHS's reinstatement order.
Gonzalez challenges DHS's reinstatement of his 2001 order of removal on three grounds. First, Gonzalez argues that he suffered a "gross miscarriage of justice" when DHS reinstated his order of removal because the 2001 order of removal was invalid. Second, he argues that DHS violated its own regulations in the process of reinstating the 2001 order of removal. And third, Gonzalez argues that DHS violated his Fifth Amendment right to due process by arbitrarily disregarding those regulations governing the reinstatement process. We lack jurisdiction to consider some of Gonzalez's arguments, and his remaining arguments are meritless.
We review our own subject matter jurisdiction de novo. Avila v. U.S. Att'y Gen., 560 F.3d 1281, 1283 (11th Cir. 2009). Our jurisdiction is limited to final orders of removal. 8 U.S.C. § 1252(a)(l). The reinstatement of an order of removal is a final order of removal under § 1252(a)(1) subject to judicial review. Avila, 560 F.3d at 1284. But we lack jurisdiction to review the underlying expedited order of removal that supported such reinstatement. See 8 U.S.C. § 1252(a)(2)(A) and (e)4; Garcia de Rincon v. Dep't of Homeland Sec., 539 F.3d1133, 1139 (9th Cir. 2008) (); Lorenzo v. Mukasey, 508 F.3d 1278, 1281 (10th Cir. 2007).
Notwithstanding that jurisdictional bar, we retain jurisdiction to review constitutional and legal challenges to an order of removal, 8 U.S.C. § 1252(a)(2)(D)5; see also Patel v. U.S. Att'y Gen., 971 F.3d 1258, 1272 (11th Cir. 2020) (en banc), which we review de novo, Poveda v. U.S. Att'y Gen., 692 F.3d 1168, 1172 (11th Cir. 2012). Such challenges must be "colorable," which is to say that "a party may not dress up [an unreviewable] claim with legal or constitutional clothing to invoke our jurisdiction." Patel, 971 F.3d at 1272. And in reviewing constitutional and legal challenges to an order of removal, we generally "may not go outside the administrative record." Blake v. U.S. Att'y Gen., 945 F.3d 1175, 1180 (11th Cir. 2019).
When, as happened here, an alien unlawfully returns to the United States after having been ordered removed, that alien's order of removal may be reinstated. See 8 U.S.C. § 1231(a)(5) (). To determine whether an alien is subject to reinstatement, an immigration official must determine: (1) "[w]hether the alien has been subject to a prior order of removal[,]" (2) "[t]he identity of the alien, i.e., whether the alien is in fact an alien who was previously removed," and (3) "[w]hether the alien unlawfully reentered the United States." 8 C.F.R. § 241.8(a). If the "officer determines that [the] alien is subject to removal, he or she shall provide the alien with written notice of his or her determination," and "advise the alien that he or she may make a written or oral statement contesting the determination." Id. § 241.8(b). Furthermore, "[i]f the alien wishes to make such a statement, the officer shall allow the alien to do so and shall consider whether the alien's statement warrants reconsideration of the determination." Id. (emphasis added).
Provided the requirements of § 241.8(a) are satisfied, "the alien shall be removed under the previous order of exclusion, deportation, or removal" unless the alien expresses a fear of returning to the country of removal. Id. § 241.8(c) and(e). If the alien expresses such a fear, the alien shall be referred "for an interview to determine whether the alien has a reasonable fear of persecution or torture[.]" Id. § 241.8(e).
Aliens are entitled to due process under the Fifth Amendment in reinstatement proceedings. Avila v. U.S. Att'y Gen., 560 F.3d 1281, 1285-86 (11th Cir. 2009). That protection "requires that aliens be given notice and an opportunity to be heard in their removal proceedings." Lapaix v. U.S. Att'y Gen., 605 F.3d 1138, 1143 (11th Cir. 2010). "To establish a due process violation, the petitioner must show that she was deprived of liberty without due process of law and that the purported errors caused her substantial prejudice." Id. "To show substantial prejudice, an alien must demonstrate that, in the absence of the alleged violations, the outcome of the proceeding would have been different." Id.
Gonzalez contends that DHS's 2001 order of removal was invalid and unenforceable since he was not subject to expedited removal in 20016 and theagency violated its own regulations when it issued that order. Because this argument attacks the validity of the underlying 2001 expedited order of removal, we lack jurisdiction to consider it. See 8 U.S.C. § 1252(a)(2)(A) and (e).7
Next, Gonzalez argues that DHS violated the governing regulations when it reinstated the 2001 order of removal. As an initial matter, Gonzalez's argument is meritless because DHS did not violate any regulations when it reinstated the 2001 expedited order of removal. However, as we will discuss in the next section, even if DHS violated the governing regulations, Gonzalez would be entitled to relief only if he can show prejudice under a due process analysis.
First, Gonzalez argues that DHS denied him his right to counsel when it allegedly did not permit Gonzalez's attorney to be present with him during the reinstatement interview. See 8 C.F.R. § 292.5(b) (). The government responds that § 292.5(b) does not apply to proceedings to reinstate an...
To continue reading
Request your trial