Villa-Anguiano v. Holder

• Decision Date: 14 August 2013
• Docket Number: No. 08–74585.,08–74585.
• Citation: 727 F.3d 873
• Parties: Alejandro Israel VILLA–ANGUIANO, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

727 F.3d 873

Alejandro Israel VILLA–ANGUIANO, Petitioner,

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

No. 08–74585.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 9, 2013.

Filed Aug. 14, 2013.

Karla L. Kraus (argued), Kraus Law Corporation, San Diego, CA, for Petitioner.

Carol Federighi (argued), Senior Litigation Counsel; Tony West, Assistant Attorney General; William C. Peachey, Assistant Director, United States Department of Justice, Civil Division, Washington, D.C., for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A090–068–616.

Before: MARSHA S. BERZON, RICHARD C. TALLMAN, and MILAN D. SMITH, JR., Circuit Judges.

OPINION

BERZON, Circuit Judge:

Alejandro Israel Villa–Anguiano (“Villa”) petitions for review of the government's reinstatement of a removal order issued in 1997. Villa contends that the Immigration and Customs Enforcement (“ICE”) agency of the Department of Homeland Security (“DHS”) may not deport him on the basis of his prior removal order, because a federal district court found that due process violations in his 1997 immigration hearing rendered the removal order invalid as a predicate for criminal prosecution under 8 U.S.C. § 1326.

We have jurisdiction under 8 U.S.C. § 1252(a)(1) to review a reinstatement order, see Castro–Cortez v. INS, 239 F.3d 1037, 1044 (9th Cir.2001), abrogated on other grounds by Fernandez–Vargas v. Gonzales, 548 U.S. 30, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006); accord Padilla v. Ashcroft, 334 F.3d 921, 924 (9th Cir.2003), and retain jurisdiction under § 1252(a)(2)(D) to consider “constitutional claims or questions of law raised upon a petition for review,” see Garcia de Rincon v. DHS, 539 F.3d 1133, 1137–38 (9th Cir.2008). For the reasons stated below, we grant Villa's petition, vacate the reinstatement order, and remand to ICE for further proceedings.

I.

This case comes before us in an unusual posture. Villa, who entered the United States from Mexico at the age of one, became a lawful permanent resident in 1989. Following a conviction for voluntary manslaughter in 1993 and service of his stipulated sentence, Villa was ordered deported in 1997 at a group hearing before an immigration judge in El Centro, California. He was physically removed in 1999 but subsequently reentered the United States without permission in 2001. On May 3, 2008, Villa was arrested by local law enforcement following a traffic stop. The next day, the government determined that Villa was “subject to removal by reinstatement of the prior [1997] order,” pursuant to 8 U.S.C. § 1231(a)(5) and 8 C.F.R. § 241.8.

Villa concedes that he was provided notice and an opportunity to contest reinstatement on May 4, 2008, as required by 8 C.F.R. § 241.8(b). His signature appears on the Notice of Intent/Decision to Reinstate Prior Order form, beside the statement, “I do not wish to make a statement contesting this determination.” The government did not, however, proceed at that point with the actual removal. Instead, the government decided to prosecute Villa for illegal reentry.

Before the district court on the illegal reentry charge, and now with the assistance of counsel, Villa collaterally attacked his 1997 removal order. See8 U.S.C. § 1326(d); United States v. Mendoza–Lopez, 481 U.S. 828, 837–38, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987) (permitting an alien to seek review of the deportation order used as a predicate element of an illegal reentry offense if he was denied judicial review of prior removal proceedings). He contended that due process violations in the underlying removal proceedings precluded him from obtaining judicial review of his 1997 deportation order. The government conceded that Villa was eligible in 1997 for relief under Immigration and Nationality Act (“INA”) § 212(c) and that the Immigration Judge did not inform him of that fact. But, the government argued § 212(c) relief was not plausible at the time of the immigration hearing, which predated INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), and thus Villa could not show prejudice.

The district court rejected the government's arguments, finding: (1) that Villa had demonstrated a deprivation of his right to counsel in the group immigration hearing; and (2) that Villa was prejudiced by the resulting due process violation, because he was eligible for relief under § 212(c) at the time of his removal proceedings, and was not so informed. Consequently, the district court held, “the outcome of [his] immigration proceeding was potentially affected by the denial of his right to counsel.” ¹ The court held the 1997 removal order invalid as the predicate for criminal prosecution under § 1326 and so, on October 9, 2008, dismissed Villa's indictment.

On October 10, 2008, the day after Villa's criminal proceedings were dismissed, immigration officials “reinstated on today's date” the “prior order of removal by an Immigration Judge,” and Villa was physically removed. Villa was neither notified at that point that the order was going to be issued and executed nor given an opportunity to object, either in writing or orally, to the reinstatement. He was denied such opportunity despite the very relevant development that occurred in the five months since reinstatement proceedings were initiated—namely, the district court's determination that the 1997 removal order was constitutionally infirm.

ICE was aware of the criminal prosecution from the outset. The Record of Deportable/Inadmissible Alien, Form I–213, dated May 4, 2008, indicated that Villa was “being held in DHS custody pending criminal prosecution for violation of 8 U.S.C. § 1326.” But the addendum to the form, dated October 10, 2008, reflects confusion regarding the result of that criminal case. The addendum correctly noted, “On October 09, 2008, Subject's case was dismissed for violation of 8 USC 1326(a)—Deported Alien Found in the United States.” It went on, however, to state erroneously that Villa “ served 156 days confinement in federal custody for violation of 8 USC 1326(a)—Deported Alien Found in the United States,” implying that Villa had been convicted of illegal reentry (emphases added). The addendum nowhere indicated the grounds on which the § 1326 indictment was dismissed or evidenced any awareness by ICE officials that the district court had held the original removal order invalid. It concluded with the statement: “Subject's prior order of removal by an Immigration Judge will be reinstated on today's date.” Villa was immediately removed.

This petition for review followed.

II.

The INA's reinstatement provision, 8 U.S.C § 1231(a)(5), specifically bars relitigation of the merits of the reinstated removal order—i.e. determination of an alien's removability or eligibility for relief. ² Accordingly, except where constitutional claims or questions of law arise in the context of reinstatement and “the petitioner can demonstrate a ‘gross miscarriage of justice’ in the [original removal] proceedings,” Garcia de Rincon, 539 F.3d at 1138,³our review of a reinstatement order is limited to assessing ICE's determination of the factual predicates for reinstatement: “(1) [that] petitioner is an alien, (2) who was subject to a prior removal order, and (3) who illegally reentered the United States.” Morales–Izquierdo v. Gonzales, 486 F.3d 484, 495–96 (9th Cir.2007) (en banc).

Under 8 C.F.R. § 241.8(a), the regulation implementing 8 U.S.C. § 1231(a)(5), the determination whether an alien meets the factual predicates for reinstatement is made by an immigration agent, not a judge; an alien has no right to be heard by a judge prior to reinstatement of a removal order. See Morales–Izquierdo, 486 F.3d at 493–95, 497 (upholding the validity of 8 C.F.R. § 241.8 under the INA and the Constitution). An alien is, however, entitled to notice and an opportunity to make “a written or oral statement contesting the determination.” § 241.8(b). Although we have held that this streamlined reinstatement procedure does not offend due process, we expressly “[left] open the possibility that individual petitioners may raise procedural defects in their particular cases.” Morales–Izquierdo, 486 F.3d at 496.

Even though an alien is not entitled to a hearing before an immigration judge on the issue of reinstatement of a prior removal order, nothing in 8 U.S.C. § 1231(a)(5) or its implementing regulations deprives the agency of discretion to afford an alien a new plenary removal hearing. “Reinstatement of a prior order of removal is not automatic.” Alcala v. Holder, 563 F.3d 1009, 1013 (9th Cir.2009). Nor is it obligatory: “Under 8 U.S.C. § 1231(a)(5), if the Attorney General finds an alien has reentered this country illegally after having been removed ... the prior order can be reinstated from its original date,” provided the requirements of 8 C.F.R. § 241.8(a) and (b) have been satisfied. Id. (emphasis added); accord Galindo–Romero v. Holder, 640 F.3d 873, 879 (9th Cir.2011). Particularly when there is any question about whether the requirements of § 241.8 have been satisfied, and even when they have been, an ICE officer may decide to forgo reinstatement of a prior order of removal in favor of initiating new removal proceedings, with the accompanying procedural rights to counsel and a hearing in immigration court. See8 U.S.C. § 1229a(b)(4) (describing an alien's rights in removal proceedings).

ICE regularly exercises “prosecutorial discretion” in “a broad range of discretionary enforcement decisions,” including “deciding to issue, reissue, serve, file, or cancel a Notice to Appear (NTA) [and] ... seeking expedited removal or other forms of removal by means other than a formal removal proceeding in immigration court.” Memorandum from John Morton, Director, ICE, on Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention and Removal of...