Valdiviez-Hernandez v. Holder

• Citation: 739 F.3d 184
• Decision Date: 02 December 2013
• Docket Number: No. 12–60677.,12–60677.
• Parties: Eligio VALDIVIEZ–HERNANDEZ, also known as Pablo Hernandez, also known as Al Hernandez, also known as Pable Hernandez, Petitioner v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

739 F.3d 184

Eligio VALDIVIEZ–HERNANDEZ, also known as Pablo Hernandez, also known as Al Hernandez, also known as Pable Hernandez, Petitioner

v.Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.

No. 12–60677.

United States Court of Appeals, Fifth Circuit.

Dec. 2, 2013.

Jaime Jasso (argued), Esq., Attorney, Law Offices of Jaime Jasso, Westlake Village, CA, for Petitioner.

Kohsei Ugumori (argued), Attorney, Julie Marie Iversen, Trial Attorney, U.S. Department of Justice, Tangerlia Cox, Office of Immigration Litigation, Washington, DC, for Respondent.

Petition for Review of an Order of the Department of Homeland Security.

Before JOLLY, DeMOSS, and SOUTHWICK, Circuit Judges.

PER CURIAM:

The original opinion in this case was issued by the panel on September 26, 2013. We GRANT the petition for rehearing. We withdraw our previous opinion and substitute the following.

Petitioner Eligio Valdiviez–Hernandez seeks review of the Department of Homeland Security's Final Administrative Removal Order issued pursuant to the Immigration and Nationality Act (INA) § 238(b), 8 U.S.C. § 1228(b). Because Valdiviez was an alien convicted of an aggravated felony, he was properly subject to the expedited administrative removal process. The petition is denied.

I.

Valdiviez, a native and citizen of Mexico, entered the United States unlawfully as a child in the 1960s and lived continuously in the United States until his removal. In February 2011, Immigration and Customs Enforcement (ICE) initiated an investigation into Valdiviez for “fraudulently using the identity of a deceased person named Pablo Hernandez.” The investigation revealed that Validiviez had used Pablo Hernandez's social security number, and obtained property, bank accounts, driver's licenses, and vehicles using the stolen identity. While searching Valdiviez's home and vehicle pursuant to a warrant, ICE agents found thirteen firearms. On November 18, 2011, Valdiviez pleaded guilty to and was convicted of one count of being an illegal alien in possession of a firearm in violation of 18 U.S.C. § 922(g)(5).

On January 24, 2012, the Department of Homeland Security (DHS) issued to Valdiviez while he was still serving his sentence a Notice of Intent, informing him that he was subject to expedited removal pursuant to INA § 238(b), 8 U.S.C. § 1228(b). Valdiviez refused to sign the Notice of Intent. Valdiviez did not exercise his right to file a written response to the Notice of Intent. On February 28, 2012, DHS served Valdiviez with a Final Administrative Removal Order (FARO), stating that Valdiviez was removable because he had been convicted of an aggravated felony and was not a citizen of the United States nor lawfully admitted for permanent residence. The FARO further stated that Valdiviez was “ineligible for any relief from removal that the Secretary of Homeland Security may grant in an exercise of discretion.”

Valdiviez subsequently expressed fear of persecution or torture if he returned to Mexico. A “reasonable fear” interview was conducted by the asylum office. See8 C.F.R. § 208.31(b). The asylum officer determined that Valdiviez did not have a reasonable fear of persecution or torture. Valdiviez sought review of the asylum officer's decision by an Immigration Judge (IJ). Id. § 208.31(g). The IJ upheld the asylum officer's decision. No further appeals were available to Valdiviez. Id. § 208.31(g)(1).

Valdiviez filed a motion for stay of removal with this court. While the motion and petition for review were pending, Valdiviez was removed to Mexico. He subsequently filed a motion asking this court for an order (1) directing ICE to show cause why this court should not impose sanctions; or (2) instruct ICE to return Valdiviez to the United States; or (3) admonish ICE for usurping judicial authority. The motion was carried with this case.

II.

Valdiviez challenges two aspects of the FARO. First, Valdiviez argues that he is not subject to the expedited removal process because he is not an alien as described in the removal statute. Specifically, Valdiviez asserts that the expedited removal process applies only to aliens who have been “admitted” to the United States and have committed an aggravated felony, and does not apply to aliens who entered the United States unlawfully. Second, he argues that the FARO incorrectly stated that he was not entitled to any discretionaryrelief, which would qualify him for an adjustment of status.

A.

Two issues must be addressed in analyzing whether we have jurisdiction to consider this petition for review. First, there is generally no right to seek review of an order of removal entered by a Department of Homeland Security Service officer after expedited removal procedures. 8 U.S.C. § 1252(a)(2)(C); 8 C.F.R. § 238.1. Even if an exception exists, judicial review can be had of “a final order of removal only if ... the alien has exhausted all administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1). The exhaustion requirement is jurisdictional. See Lopez–Dubon v. Holder, 609 F.3d 642, 644 (5th Cir.2010). We address the exhaustion point first.

The government asserts that Valdiviez failed to exhaust his administrative remedies because he did not file a response to the Notice of Intent, leaving this court without jurisdiction to review his petition. Valdiviez counters that the available administrative remedies are limited to challenges of factual deficiencies, not legal conclusions. He further argues that DHS officers are not trained to interpret immigration statutes to the extent of an IJ or the Board of Immigration Appeals (BIA).

INA § 238(b), 8 U.S.C. § 1228(b), authorizes the Attorney General to expedite removal of an alien who is not a lawful permanent resident and who is deportable for committing an aggravated felony. 8 U.S.C. § 1228(b)(1), (2)(A). The alien has ten calendar days to file a written response to the Notice of Intent. 8 C.F.R. § 238.1(c)(1). In response, an alien may designate a country of removal; rebut the allegations supporting the charge; request to review the Government's evidence supporting the charge; request an extension of time to respond; and request withholding of removal under the Convention Against Torture (CAT). Id. If the alien does not timely rebut the charges, a DHS officer issues a FARO and the alien may be removed fourteen days after issuance of that order. Id. § 238.1(d)(1).

Valdiviez challenges the FARO's legal conclusion that he is subject to the expedited removal process on the ground that it applies only to aliens “admitted” to the United States. Although the Notice of Intent included conclusions of law and Valdiviez had an opportunity to respond to the allegations supporting the charges against him, the relevant regulations indicate that the response process is geared toward resolving only issues of fact. Id. § 238.1(d)(2)(i), (ii) (stating that the DHS officer may base its decision following a response to a Notice of Intent on whether or not the alien demonstrated a genuine issue of material fact). Further, aliens subject to expedited removal do not appear before an IJ, nor can they appeal an adverse decision to the BIA. See generally id. § 238.1. The relevant statutes and corresponding regulations therefore did not provide Valdiviez with an avenue to challenge the legal conclusion that he does not meet the definition of an alien subject to expedited removal. As such, Valdiviez did not fail to exhaust his administrative remedies.¹

B.

Even without the bar of exhaustion, there is still the impediment that “no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed [an aggravated felony].” 8 U.S.C. § 1252(a)(2)(C). Nonetheless, another section of that same statute recognizes that “an appropriate court of appeals” has jurisdiction to consider “constitutional claims or questions of law raised upon a petition for review.” Id. 1252(a)(2)(D). The claims presented are of that nature, and we have jurisdiction to review them.

1.

The prerequisites for expedited removal are that the person be (1) an alien, (2) who has committed a crime covered in 8 U.S.C. § 1227(a)(2)(A)(iii) (aggravated felony), and (3) has not been admitted, even conditionally, as a lawful permanent resident:

(b) Removal of aliens who are not permanent residents

(1) The Attorney General may, in the case of an alien described in paragraph (2), determine the deportability of such alien under section 1227(a)(2)(A)(iii) of this title (relating to conviction of an aggravated felony) and issue an order of removal pursuant to the procedures set forth in this subsection or section 1229a of this title.

(2) An alien is described in this paragraph if the alien—

(A) was not lawfully admitted for permanent residence at the time at which proceedings under this section commenced; or

(B) had permanent resident status on a conditional basis ... at the time that proceedings under this section commenced.

8 U.S.C. § 1228(b).

There is no dispute that Valdiviez is an alien who committed an aggravated felony (illegal alien in possession of a firearm), and who has no status as a lawful permanent resident. Indeed, Valdiviez conceded he was removable as an aggravated felon. Section 1227(a)(2)(A)(iii) states that “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.” (emphasis added). The term “admission” is defined as “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” Id. § 1101(a)(13)(A).

Valdiviez argues that § 1228(b) requires an alien to have been convicted of an aggravated felony as defined in § 1227(a)(2)(A)(iii) in order to be subject to expedited removal, and § 1227(a)(2)(A)(iii) requires that an alien have committed the aggravated felony after having been “admitted” to the United States. Valdiviez asserts that because he was not admitted into the...