Ochoa-Carrillo v. Gonzales

• Decision Date: 15 February 2006
• Docket Number: No. 04-2038.,04-2038.
• Parties: Myrna OCHOA-CARRILLO, Petitioner, v. Alberto GONZALES, Attorney General of the United States of America Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

437 F.3d 842

Myrna OCHOA-CARRILLO, Petitioner, v. Alberto GONZALES, Attorney General of the United States of America Respondent.

No. 04-2038.

United States Court of Appeals, Eighth Circuit.

Submitted: October 12, 2005.

Filed: February 15, 2006.

Rekha Sharma-Crawford, argued, Overland Park, KS, for appellant.

Blair J. O'Connor, argued, U.S. Department Of Justice, OIL, Washington, D.C. (Aviva L. Poczter, USDOJ, OIL, on the brief), for appellee.

Before LOKEN, Chief Judge, GRUENDER and BENTON, Circuit Judges.

LOKEN, Chief Judge.

Myrna Ochoa-Carrillo petitions for judicial review of an order of the Bureau of Immigration and Customs Enforcement (BICE) reinstating a prior removal order.¹ The order was entered pursuant to § 241(a)(5) of the Immigration and Nationality Act, 8 U.S.C. § 1231(a)(5),² and its implementing regulation, 8 C.F.R. § 241.8. Ochoa-Carrillo argues that BICE erred in determining that she is the alien named in the prior order and that the regulation violates the statute and her right to procedural due process. We have jurisdiction to review an order reinstating a prior order of removal. See 8 U.S.C. § 1252(a); Briones-Sanchez v. Heinauer, 319 F.3d 324, 326 (8th Cir.2003). Our review is limited to the agency's certified administrative record. See 8 U.S.C. § 1252(b)(4)(A); Grass v. Gonzales, 418 F.3d 876, 879 (8th Cir.2005). We conclude that the agency's identity determination is well supported in the administrative record. We reject Ochoa-Carrillo's statutory argument and conclude that she has failed to establish the prejudice necessary to support a procedural due process challenge. Accordingly, we deny the petition for review.

I. Background Facts.

In November 2001, Ochoa-Carrillo married an American citizen in Kansas City, Missouri. She applied for an adjustment of status to lawful permanent resident on INS Form I-485, representing that she had never been deported but had used a false social security number to obtain work. Immigration officials submitted the application, which included Ochoa-Carrillo's fingerprints, to the FBI for a routine criminal check. The FBI reported that the applicant's fingerprints matched those of an alien named Ivette Trevizo-Frias who made a false claim of U.S. citizenship and was summarily removed under a removal order dated March 2, 1998.³ In March 2004, the INS denied the I-485 application on the ground that Ochoa-Carrillo "made a false claim to United States citizenship on March 2, 1998, was subsequently removed from the United States as a result of that claim, and no waiver of this ground of inadmissibility is available." See 8 U.S.C. § 1182(a)(6)(C)(ii).

Ochoa-Carrillo sought to renew her alien employment authorization in late April, 2004. She was detained because of the I-485 denial. On April 26, immigration officers in Kansas City served Ochoa-Carrillo and her attorney with a Notice of Intent/Decision to Reinstate Prior Order (INS Form I-871). The Notice recited that Ochoa-Carrillo was removable under 8 U.S.C. § 1231(a)(5) because she had illegally reentered the United States after being removed pursuant to the March 2, 1998 removal order. Ochoa-Carrillo refused to sign the Acknowledgment and Response section of the Notice, where she could have stated that she wished "to make a statement contesting the determination." BICE's Acting Interim Resident Agent in Charge then signed the Order at the bottom of the form, certifying that he "determined that the above-named alien is subject to removal through reinstatement of the prior order." That determination and order are the subject of this petition for review.

The record reflects that BICE again submitted Ochoa-Carrillo's fingerprints to the FBI on April 27. The FBI responded that day, reporting that the fingerprints submitted "are identical with" those of Trevizo-Frias. On April 29, Ochoa-Carrillo filed this petition for review. She also filed a motion to reopen the February 1993 exclusion proceedings with the Department of Justice and petitions for a writ of habeas corpus and for a stay of removal with the United States District Court for the Western District of Missouri. The district court granted a stay of removal. The habeas petition remains pending in that court (Case No. 04-4089-CV).

II. Discussion.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009-546 (1996), enacted significant changes to the statutory reinstatement and removal procedure. See Alvarez-Portillo v. Ashcroft, 280 F.3d 858, 862-63 (8th Cir.2002), cert. denied, 537 U.S. 1111, 123 S.Ct. 864, 154 L.Ed.2d 784 (2003). The statute does not prescribe the procedures to be followed in reinstating a prior removal order. Responding to legislative history reflecting Congress's intent to expedite the removal of those who illegally reenter, the Attorney General promulgated regulations adopting a summary reinstatement procedure. See 8 C.F.R. § 241.8; Lattab v. Ashcroft, 384 F.3d 8, 17-20 (1st Cir.2004).⁴

A.

Ochoa-Carrillo first argues that the April 26, 2004 Notice of Reinstatement erred in alleging that she is subject to a prior order of removal. She asserts that the Notice was invalid because BICE did not ask the FBI for a fingerprint comparison until April 27, the day after its adverse determination, whereas the regulation provides that, in a disputed case, "verification of identity shall be accomplished by a comparison of fingerprints" and the summary reinstatement procedure may not be used "[i]n the absence of fingerprints," 8 C.F.R. § 241.8(a)(2). This assertion is legally unsound because the regulation does not state that the summary reinstatement procedure may not be commenced absent fingerprint evidence. More importantly, the assertion is factually wrong. The Notice was issued after the March 2004 denial of Ochoa-Carrillo's I-485 application, which in turn was based upon FBI fingerprint comparisons in 2002 that reported a match with the prints of Trevizo-Frias. Thus, BICE was fully justified in issuing a Notice of Reinstatement under § 241.8.

Ochoa-Carrillo's appeal brief then attempts to catalog all the mistakes that FBI examiners might have made in comparing the fingerprints. Assuming this is a challenge to the agency's identity determination, rather than the Notice, there is no record support for these speculative contentions. Ochoa-Carrillo was entitled to contest identity. See 8 C.F.R. § 241.8(a)(2). The agency's reliance on a prior removal order identifying the removed alien by a different name raised an identity issue. But when served with the Notice on April 26, Ochoa-Carrillo did not make a written statement disputing the agency's determination. She apparently raised the identity issue orally because BICE submitted another fingerprint request to the FBI the next day. The FBI promptly reported another match with the prints of Trevizo-Frias, a report that gave the agency decision-maker no basis to reconsider his April 26 identity determination, as 8 C.F.R. § 241.8(b) expressly permits.

Ochoa-Carrillo made no further record on the identity issue. Instead, she filed an administrative motion to reopen the February 1993 exclusion proceedings on grounds other than mistaken identity; a petition for review to this court, which may only consider the administrative record; and a habeas petition to the district court which had no jurisdiction because judicial review lies exclusively in the court of appeals.⁵ On this record, we must reject any challenge to the fingerprint evidence relied upon by BICE in making its identity determination. Thus, substantial evidence on the administrative record as a whole supports BICE's decision to reinstate the March 2, 1998 removal order and remove Ochoa-Carrillo as an illegal reentrant.

B.

Ochoa-Carrillo argues that BICE violated the Immigration and Nationality Act by entering the reinstatement order without the hearing before an immigration judge that must precede entry of an initial removal order. See 8 U.S.C. § 1229a(a)(1) and (b)(4). These hearing provisions apply broadly to removal proceedings: "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 ... removed from the United States." 8 U.S.C. § 1229a(a)(3). Because § 1231(a)(5) does not prescribe different procedures to be employed in reinstating a removal order, Ochoa-Carrillo contends that BICE must therefore comply with the § 1229a procedures. The argument is based upon the panel decision in Morales-Izquierdo v. Ashcroft, 388 F.3d 1299 (9th Cir.2004). That decision is now being reviewed by the Ninth Circuit en banc, Morales-Izquierdo v. Gonzales, 423 F.3d 1118 (9th Cir.2005).

In Alvarez-Portillo, 280 F.3d at 866, in considering whether 8 U.S.C. § 1231(a)(5) had an impermissible retroactive effect, we commented:

The INS has construed [the statute] as mandating a more streamlined reinstatement procedure. Therefore, its implementing regulation provides the alien with notice and an opportunity to be heard but authorizes an immigration officer to make the required fact findings and enter a reinstatement order in summary fashion. 8 C.F.R. § 241.8. This is clearly a permissible interpretation of the statute that is entitled to substantial judicial deference.

Since that decision, we have upheld at least three reinstatement orders without reconsidering that comment. See Briones-Sanchez, 319 F.3d at 327; Lopez, 332 F.3d at 512; Flores v. Ashcroft, 354 F.3d 727, 730 (8th Cir.2003). In Lattab, 384 F.3d at 17-20, the First Circuit considered the question in depth, concluding that the statute is ambiguous and agreeing with Alvarez-Portillo that 8 C.F.R. § 241.8 must be upheld as a reasonable interpretation of the statute. In Tilley v. Chertoff, 144 Fed.Appx. 536, 540 (6th Cir.2005), the Sixth Circuit also upheld the regulation, finding no ambiguity because imposing the procedural requirements...