Mendoza-Linares v. Garland
| Docket Number | 20-71582 |
| Decision Date | 24 October 2022 |
| Citation | 51 F.4th 1146 |
| Parties | Hever Alberto MENDOZA-LINARES, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Brian C. Baran (argued), Reichman Jorgensen Lehman & Feldberg LLP, Washington, D.C.; Kate Falkenstien, Reichman Jorgensen Lehman & Feldberg LLP, Redwood Shores, California; for Petitioner.
Aric A. Anderson (argued), 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.
Opinion by Judge Collins ;
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 had no previous ties to the United States and, indeed, had never been to this country before. He was immediately placed into expedited removal proceedings, and an asylum officer and an immigration judge ("IJ") concluded that he had failed to make a sufficient showing to warrant any further proceedings concerning his requests for asylum or other relief. Accordingly, an expedited order of removal was issued against him, with no possibility of appeal to the Board of Immigration Appeals ("BIA").
As an arriving immigrant caught at the border, Mendoza-Linares "has no constitutional rights regarding his application" for asylum. See Dep't of Homeland Sec. v. Thuraissigiam , ––– U.S. ––––, 140 S. Ct. 1959, 1982, 207 L.Ed.2d 427 (2020) (citation omitted); see also id. at 1981–82 (). Taking advantage of this unique constitutional status of arriving aliens with no ties to the United States, Congress has chosen to explicitly bar nearly all judicial review of expedited removal orders concerning such aliens, including "review of constitutional claims or questions of law." 8 U.S.C. § 1252(a)(2)(A), (D) ; see also Guerrier v. Garland , 18 F.4th 304, 311–13 (9th Cir. 2021). Nonetheless, Mendoza-Linares has filed a petition for review in this court, claiming that we retain jurisdiction to decide the "colorable constitutional claim" that he contends he has presented with respect to his expedited removal order. But as we indicated in Guerrier , " Thuraissigiam 's conclusion that the Due Process Clause does not require review of how the agency determines whether a noncitizen subject to expedited removal is eligible for asylum precludes this court" from asserting jurisdiction in such a case, "despite [the alien's] raising a colorable constitutional claim." 18 F.4th at 312.
Because Congress has clearly and unambiguously precluded us 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, we conclude that we lack jurisdiction over Mendoza-Linares's petition. Accordingly, we dismiss his petition for lack of jurisdiction.
Mendoza-Linares is a native and citizen of El Salvador. He traveled from El Salvador by land and illegally entered the United States by jumping over the international border fence near Tecate, California on February 10, 2020. He was immediately apprehended and detained by officials from the Department of Homeland Security ("DHS").
Section 235(b)(1) of the Immigration and Nationality Act ("INA") contemplates that aliens arriving in the United States will be screened for eligibility for expedited removal.1 See 8 U.S.C. § 1225(b)(1). Accordingly, two days after being apprehended, and while he was still in DHS custody, Mendoza-Linares was interviewed by a Spanish-speaking immigration officer. He admitted that he had entered the United States illegally on February 10, without inspection and without entry documents. He stated that he had left El Salvador in order to be with his girlfriend, who lived in Vista, California. Mendoza-Linares answered "No" when asked whether he had "any fear or concern about being returned" to El Salvador and whether he would "be harmed" if returned there.
Based on these responses, the immigration officer immediately made a formal written determination that (1) Mendoza-Linares was an immigrant who at the time he sought to enter the United States lacked a valid entry document; and (2) as a result, he was inadmissible under INA § 212(a)(7)(A)(i)(I). See 8 U.S.C. § 1182(a)(7)(A)(i)(I) (); see also id. § 1225(a)(1) (). And because Mendoza-Linares had expressed no fear about being returned to El Salvador, the officer proceeded to issue, with his supervisor's approval, a formal written order of removal under § 235(b)(1) on February 12, 2020. See 8 U.S.C. § 1225(b)(1)(A)(i) (); see also 8 C.F.R. § 235.3(b)(7) (); id. § 1235.3(b)(7) (same).
It appears, however, that Mendoza-Linares subsequently did express fear about being returned to El Salvador, although the record is unclear as to when and how he did so. Instead of executing the expedited removal order, DHS on February 21 provided Mendoza-Linares with an "orientation" describing the "credible fear" review process that applies when aliens, during their initial screening, indicate fear of returning to their home country. See 8 U.S.C. § 1225(b)(1)(A)(ii) (). Thus, although Mendoza-Linares had not expressed fear of being returned to El Salvador during his initial screening interview and although an order of removal had already been entered against him, he was nonetheless referred to an asylum officer, who on March 31, 2020 conducted a "credible fear" interview as described in INA § 235(b)(1)(B). See 8 U.S.C. § 1225(b)(1)(B).
Under that provision, the asylum officer must conduct an interview for the purpose of determining whether the alien has a "credible fear of persecution," i.e. , whether "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 eligibility for asylum" under INA § 208. See 8 U.S.C. § 1225(b)(1)(B)(v).2 Although the statutory standard speaks solely in terms of asylum, the applicable regulations go further and direct the asylum officer also to assess whether the alien might be eligible for withholding of removal under § 241(b)(3) of the INA or for relief under the Convention Against Torture. See 8 C.F.R. § 208.30(e)(2), (3), (5) (2020).
During his credible fear interview with an asylum officer, Mendoza-Linares stated that he was afraid that he would be harmed by gangs if he was returned to El Salvador. Mendoza-Linares said that he had worked as a DJ at parties, that some of his clients were politicians, and that at such events the clients would require him to repeat their message that "the government or the candidate was against the gangs." That, he said, led to a half-dozen incidents of assaults by gang members, including throwing rocks or shooting at a bus he was riding. Mendoza-Linares also recounted two incidents in which a wall poster advertising his DJ business was defaced with gang symbols, and he was beaten or threatened after he erased the symbols. He additionally told the asylum officer that, although he did not have any gang tattoos, he was worried that his tattoos—which consisted of a coy fish, his daughter's name, bar codes with his and his daughter's birthdays, and the comedy/tragedy "theater" faces—would be mistaken for gang tattoos.
After the interview, the asylum officer determined on April 1, 2020 that Mendoza-Linares did not have a credible fear of persecution or a credible fear of torture. In accordance with § 235(b)(1)(B)(iii)(II), the officer made a written record setting forth his "analysis of why, in the light of such facts, the alien has not established a credible fear of persecution." 8 U.S.C. § 1225(b)(1)(B)(iii)(II) ; see also 8 C.F.R. § 208.30(e)(1). Using a standard agency form (I-870), the asylum officer determined that Mendoza-Linares was credible, but that "[n]o fear of persecution or torture [had been] established."
In the narrative section of the form, the officer first explained that Mendoza-Linares was "barred from asylum pursuant to 8 CFR 208.13(c)(4)"; that he therefore had "not established a significant possibility of establishing eligibility for asylum"; and that, consequently, he "received a negative credible fear of persecution determination." The regulatory reference was to the so-called "Transit Bar," a then-operative interim regulation at 8 C.F.R. § 208.13(c)(4) (2020),3 which provided that, subject to...
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