De Sandoval v. U.S. Atty. Gen.

• Decision Date: 27 February 2006
• Docket Number: No. 04-12223.,04-12223.
• Citation: 440 F.3d 1276
• Parties: M. Fatima Guijosa DE SANDOVAL, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

440 F.3d 1276

M. Fatima Guijosa DE SANDOVAL, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.

No. 04-12223.

United States Court of Appeals, Eleventh Circuit.

February 27, 2006.

Juan J. Mendoza, Mendoza & Mueller, Naples, FL, for Petitioner.

Jocelyn L. Wright, David V. Bernal, Anthony P. Nicastro, Carol Federighi, Leslie McKay, U.S. DOJ, OIL, Washington, DC, for Respondent.

Petition for Review of a Decision of the Bureau of Immigration and Customs Enforcement.

Before EDMONDSON, Chief Judge, and BLACK and FAY, Circuit Judges.

BLACK, Circuit Judge:

Petitioner M. Fatima Guijosa De Sandoval seeks review of an April 27, 2004, order issued by the U.S. Bureau of Immigration and Customs Enforcement (BICE), reinstating her August 27, 1999, expedited removal order. In her petition, Petitioner advances four arguments, each of which presents an issue of first impression in our circuit: (1) the Attorney General exceeded his authority in promulgating 8 C.F.R. § 241.8, which empowers an immigration officer, rather than an immigration judge, to reinstate the previous removal order of an alien who illegally reenters the United States; (2) § 1231(a)(5) is impermissibly retroactive as applied to her, even though she illegally reentered the United States after that statute took effect; (3) she is not subject to § 1231(a)(5) because that section conflicts with and was superseded by § 1255(i); and (4) 8 C.F.R. § 241.8 violates her procedural due process rights.¹ We deny her petition.

I. BACKGROUND

The facts are not in dispute. Petitioner was born in Mexico in 1968 and married her husband there in 1988. She first entered the United States without inspection in approximately June 1995. On September 18, 1995, Petitioner's husband, then a lawful permanent resident of the United States, filed a visa petition on her behalf, accompanied by Petitioner's application for adjustment of status. Although the visa petition was granted, Petitioner's application for adjustment of status was denied on January 8, 1996, because her priority date was not yet current.

At some point in 1999, Petitioner returned to Mexico. On August 6, 1999, she tried to reenter the United States using an Arrival/Departure Form with a counterfeit parole stamp. The following day, after an interview with an immigration officer in which she admitted using a counterfeit parole stamp, she was ordered removed pursuant to the expedited removal proceedings set forth in 8 U.S.C. § 1225(b)(1).

In violation of her removal order, Petitioner reentered the United States without inspection on or about August 8, 1999. On April 23, 2002, she filed a second application for adjustment of status, based on the fact her husband became a naturalized U.S. citizen on March 27, 2002. When she appeared for her April 27, 2004, interview with the U.S. Bureau of Customs and Immigration Services (BCIS) regarding her second adjustment of status application, she was arrested by BICE. The same day, BICE issued a Notice of Intent/Decision to Reinstate Removal Order against Petitioner, indicating it was reinstating her August 7, 1999, removal order. This petition for review followed.

II. STANDARD OF REVIEW

We review questions of statutory interpretation and other issues of law de novo. See United States v. Trainor, 376 F.3d 1325, 1330 (11th Cir.2004). When reviewing an agency's interpretation of a statute it administers, however, we apply the two-step test articulated in Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See also Lewis v. Barnhart, 285 F.3d 1329, 1333 (11th Cir.2002). The first step in the Chevron analysis requires us to determine whether "Congress has directly spoken to the precise question at issue." Chevron, 467 U.S. at 842, 104 S.Ct. at 2781. If Congress clearly expressed its purpose, and the agency's regulation conflicts with this purpose, then we must set aside the regulation. See id. at 843 n. 9, 104 S.Ct. at 2781-82 n. 9.

On the other hand, if Congress has not directly addressed the issue, or the statute's language is ambiguous, then we must move to the second Chevron step and decide "whether the agency's [regulation] is based on a permissible construction of the statute." Id. at 843, 104 S.Ct. at 2782. To uphold an agency's statutory interpretation, we "need not conclude that the agency construction was the only one it permissibly could have adopted ..., or even the reading the court would have reached if the question initially had arisen in a judicial proceeding." Id. at 843 n. 11, 104 S.Ct. at 2782 n. 11. Deference to an agency's interpretation of a statute "is especially appropriate in the immigration context where officials `exercise especially sensitive political functions that implicate questions of foreign relations.'" INS v. Aguirre-Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439, 1445, 143 L.Ed.2d 590 (1999) (quoting INS v. Abudu, 485 U.S. 94, 110, 108 S.Ct. 904, 915, 99 L.Ed.2d 90 (1988)).

III. DISCUSSION

A. Did the Attorney General Exceed His Authority in Promulgating 8 C.F.R. § 241.8?

Petitioner argues 8 C.F.R. § 241.8 is ultra vires because it allows an immigration officer to reinstate an illegal reentrant's existing removal order without providing the alien a hearing before an immigration judge. The Attorney General promulgated 8 C.F.R. § 241.8 under 8 U.S.C. § 1231(a)(5). As part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, 110 Stat. 3009 (1996), Congress repealed § 1252(f),² the former statute governing the reinstatement of removal orders, and replaced it with § 1231(a)(5). This new reinstatement statute provides:

If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry.

§ 1231(a)(5). Section 1231(a)(5) made three significant changes to its predecessor statute. First, § 1231(a)(5) applies to all aliens who illegally reenter the United States in violation of an existing removal order, whereas former § 1252(f) only applied to a subset of illegal reentrants. Second, § 1231(a)(5) prohibits illegal reentrants from seeking either reopening of their existing removal order or review of their reinstatement order. Third, § 1231(a)(5) bars illegal reentrants from applying for any form of relief provided in Chapter 12 of Title VIII.

According to the Attorney General, Congress enacted § 1231(a)(5) to streamline and expedite the procedures for reinstating the removal orders of aliens who illegally reenter the United States. Under the pre-IIRIRA regulation, 8 C.F.R. § 242.23 (repealed 1997), an illegal reentrant received a hearing before an immigration judge, who determined (1) the alien's identity, (2) whether the alien had previously been removed, and (3) whether the alien illegally reentered the United States. Following Congress's enactment of § 1231(a)(5), however, the Attorney General repealed 8 C.F.R. § 242.23 and promulgated 8 C.F.R. § 241.8 in its place. Unlike the former regulation, 8 C.F.R. § 241.8(a) states "[a]n alien who illegally reenters the United States after having been removed ... has no right to a hearing before an immigration judge." Rather, an immigration officer makes the three aforementioned fact findings and the ultimate decision of whether to issue a reinstatement order. § 241.8(a)(1)-(3). The Attorney General asserts 8 C.F.R. § 241.8 comports with § 1231(a)(5)'s purpose of eliminating the delays of affording previously removed aliens a hearing before an immigration judge each time they illegally reenter the United States.

Petitioner counters the Attorney General's reliance on § 1231(a)(5) by pointing to § 1229a(a), which predates Congress's enactment of IIRIRA. Section 1229a(a)(1) states "[a]n immigration judge shall conduct proceedings for deciding the inadmissibility or deportability of an alien."³ Furthermore, § 1229a(a)(3) 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 ... removed from the United States." Petitioner contends § 1229a(a) sets forth the procedures applicable to all aliens—i.e., those who are removable in the first instance and those who reenter the United States in violation of an existing removal order. And because § 1231(a)(5) does not expressly strip illegal reentrants of their right to a hearing before an immigration judge, Petitioner asserts § 1229a(a) still requires these aliens to receive such a hearing. Accordingly, Petitioner contends the Attorney General exceeded his authority by promulgating 8 C.F.R. § 241.8.

Two circuits have held 8 C.F.R. § 241.8 constitutes a lawful exercise of the Attorney General's authority.⁴ In Lattab v Ashcroft, the First Circuit determined §§ 1229a(a) and 1231(a)(5) were ambiguous regarding the procedures owed to illegal reentrants, and the Attorney General's interpretation of these statutes under 8 C.F.R. § 241.8 was permissible. 384 F.3d 8, 19-20 (1st Cir.2004). Subsequently, in Ochoa-Carrillo v. Gonzales, the Eighth Circuit agreed with the First Circuit's conclusion, holding: "[T]he answer is clear—8 C.F.R. § 241.8 is a valid interpretation of [§ 1231(a)(5)]." 437 F.3d 842, 846 (8th Cir.2006). Thus, both circuits rejected the argument that 8 C.F.R. § 241.8 is ultra vires.

For the following reasons, we join the First and Eighth Circuits in holding the Attorney General did not exceed his authority in promulgating 8 C.F.R. § 241.8. Under the first step of Chevron's two-step analysis, we conclude §§ 1229a(a) and 1231(a)(5) are at best ambiguous regarding the...