Mendoza-Linares v. Garland

• Decision Date: 24 October 2022
• Docket Number: 20-71582
• Parties: HEVER ALBERTO MENDOZA-LINARES, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

HEVER ALBERTO MENDOZA-LINARES, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.

No. 20-71582

United States Court of Appeals, Ninth Circuit

October 24, 2022

Argued and Submitted December 7, 2021 San Francisco, California

On Petition for Review of an Order of an Agency No. A213-209-821 Immigration Judge

Brian C. Baran, Reichman Jorgensen Lehman & Feldberg LLP Washington, D.C.; Kate Falkenstien, Reichman Jorgensen Lehman & Feldberg LLP, Redwood Shores, California; for Petitioner.

Aric A. Anderson, Trial Attorney; Holly M. Smith, Assistant Director; Brian Boynton, Acting Assistant Attorney General Office of Immigration Litigation, Civil Division, United States Department of Justice; for Respondent.

Before: Susan P. Graber and Daniel P. Collins, Circuit Judges, and Jennifer Choe-Groves, ^[*] Judge.

SUMMARY ^[**]

Immigration

Dismissing Hever Alberto Mendoza-Linares's petition for review from a decision of an immigration judge affirming an asylum officer's negative credible fear determination in expedited removal proceedings, the panel held that because Congress has clearly and unambiguously precluded the court from asserting jurisdiction over the merits of individual expedited removal orders, even with regard to constitutional challenges to such orders, and because that prohibition on jurisdiction raises no constitutional difficulty, the court lacked jurisdiction over Mendoza-Linares's petition for review.

Mendoza Linares entered the United States without inspection and was immediately detained by Officers from the Department of Homeland Security ("DHS"). Two days later, pursuant to 8 U.S.C. § 1225, DHS issued an expedited removal order against him. After Mendoza-Linares asserted a fear of persecution, an asylum officer conducted a credible fear interview and concluded that Mendoza-Linares had not shown a reasonable fear of future persecution on account of a protected ground. An IJ upheld that determination, rejecting Mendoza-Linares's asylum claim solely because of the then-operative interim regulation, 8 C.F.R. § 208.13(c)(4) (2020)-the so-called "Transit Bar," which provided that, subject to certain enumerated exceptions, an alien (such as Mendoza-Linares) who arrived in the U.S. across the southern border "after transiting through at least one country outside the alien's country of citizenship, nationality, or last lawful habitual residence en route to the United States" was categorically ineligible for asylum.

By limiting the availability of asylum, the Transit Bar effectively increased the standard of proof that an alien must satisfy to avoid expedited removal. An alien subject to the Transit Bar may still avoid expedited removal by establishing a reasonable fear of persecution or torture for purposes of withholding of removal and protection under the Convention Against Torture. The "reasonable fear" of persecution screening standard used to determine, in expedited removal proceedings, whether further consideration of withholding of removal is warranted is the same standard required to establish a "well-founded fear of persecution" in the ordinary asylum context. However pursuant to 8 U.S.C. § 1225(b)(1)(B)(v), an alien in expedited removal proceedings, but not subject to the Transit Bar, need only establish that there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien's claim and such other facts as are known to the officer, that the alien could establish the well-founded fear of persecution necessary for asylum. Thus, the practical effect of the Transit Bar is to raise the standard for avoiding expedited removal from (1) a significant possibility that the alien could show a well-founded fear of persecution to (2) a showing of a well-founded fear of persecution. Applying the latter standard, the IJ upheld the asylum officer's negative reasonable fear determination as to withholding of removal. The IJ also found no reasonable fear of torture.

Mendoza-Linares argued that, because the asylum officer and the IJ relied on the Transit Bar in finding that he lacked a credible fear of persecution, he was denied, without due process, his statutory rights under § 1225. The panel held that it could not reach the merits of Mendoza-Linares's argument because it lacked subject matter jurisdiction over the entirety of the petition under 8 U.S.C. § 1252(a)(2)(A). The panel explained that the plain text of § 1252(a)(2)(A) comprehensively bars judicial review of matters relating to expedited removal orders, including the merits of the credible fear determination, except as provided in §1252(e), which provides only for very limited challenges in an appropriate district court. The panel concluded that none of those exceptions applied here.

The panel explained that § 1252(e) authorizes only two limited forms of judicial review of matters concerning expedited removal-namely, (1) a very limited form of judicial review in habeas corpus proceedings; and (2) review of certain challenges on the validity of the system, which must be brought exclusively as an action instituted in the United States District Court for the District of Columbia. Because habeas proceedings must be instituted in the appropriate district court and not in the first instance in this court, and because a petition for review in this court is distinct from a habeas corpus petition, the panel concluded that the limited authorization of habeas corpus proceedings did not grant this court jurisdiction over Mendoza-Linares's petition for review brought under § 1252(a)(1). Likewise, the limited grant of jurisdiction to the D.C. district court did not confer any jurisdiction on this court.

Even if Mendoza-Linares's petition for review could properly be characterized as invoking the limited jurisdiction conferred on an appropriate district court under § 1252(e), the panel concluded that it could not transfer this matter because both the D.C. district court, and the United States District Court for the Southern District of California, which would have venue over a habeas corpus petition, would both lack jurisdiction over the matter. The panel explained that any action in the D.C. district court would not have been timely. The panel also considered whether Mendoza-Linares had raised a sufficient question as to whether he "was ordered removed" under §1225(b)(1) to invoke the exception of §1252(e)(2)(B). The panel rejected Mendoza-Linares's argument that because his credible fear was not evaluated under the correct statutory standards-due to application of the Transit Bar-the order did not constitute an expedited removal order under §1225(b)(1). Thus, because it was clear the agency entered an expedited removal order under § 1225(b)(1), the panel concluded that Mendoza-Linares had no colorable basis for invoking the very limited habeas jurisdiction in § 1252(e)(2), and the Southern District would lack jurisdiction over this matter.

The panel concluded that § 1252(a)(2)(D), which restores jurisdiction over certain constitutional questions and questions of law in removal cases, makes unambiguously clear that §§ 1252(a)(2) and (e) bar judicial review of constitutional challenges to expedited removal orders. The panel further concluded that, even if the court retained jurisdiction over "colorable constitutional claims," Mendoza-Linares's petition must still be dismissed because he had not presented any such colorable constitutional claim. Mendoza-Linares contended under East Bay Sanctuary Covenant v. Biden, 993 F.3d 640, 669-75 (9th Cir. 2021), that the Transit Bar's substantive limitations on the granting of asylum were contrary to the immigration statute. The panel explained that although this was a colorable statutory argument, it did not present a colorable constitutional claim.

Because § 1252 barred the court from asserting jurisdiction over Mendoza-Linares's petition for review, and a habeas court would likewise lack jurisdiction, the panel wrote that the only remaining question was whether, by denying all judicial review, § 1252 was unconstitutional as applied in this case. In view of the fact that arriving aliens such as Mendoza-Linares lack any constitutionally protected due process rights concerning whether they will be removed or admitted, the panel concluded that the answer to that question was plainly no. Further, the panel explained that the Supreme Court in Dep't of Homeland Sec. v. Thuraissigiam, 140 S.Ct. 1959 (2020), expressly rejected the alternative theory that a complete denial of judicial review in expedited removal cases effects an unconstitutional suspension of the writ of habeas corpus.

Dissenting Judge Graber wrote that the majority opinion flouts both Congressional intent and binding precedent from the Supreme Court and this court, depriving a litigant of the judicial review to which he is entitled with respect to his colorable-indeed, meritorious-constitutional claim. In Judge Graber's view, (1) the court had jurisdiction to review Mendoza-Linares's colorable constitutional claim, because no other judicial forum exists in which that claim can be reviewed and Congress has not explicitly foreclosed the court's review of colorable constitutional claims; and (2) Mendoza-Linares did not receive the process that Congress provided because the IJ did not consider whether Mendoza-Linares had established a significant possibility that he could show eligibility for asylum. Accordingly, Judge Graber would grant the petition and remand for further proceedings.

OPINION

COLLINS, CIRCUIT JUDGE.

Petitioner Hever Alberto Mendoza-Linares, a citizen of El Salvador jumped the border fence near Tecate, California and was immediately apprehended by U.S. authorities. He...