Aguilar-Aguilar v. Napolitano
700 F.3d 1238
10th Cir.2012Background
- DHS commenced regular removal proceedings against Aguilar-Aguilar in August 2010 under 8 U.S.C. § 1229a.
- Aguilar-Aguilar conceded removability as an alien present in the U.S. without admission but sought discretionary relief via adjustment of status under § 1255(i).
- DHS moved to dismiss the NTA and terminate § 1229a proceedings without prejudice after conceding the request for relief would be moot.
- Because of aggravated felony conviction, Aguilar-Aguilar was deportable and subject to expedited removal under § 1228(b), leading to a FARO directing removal to Mexico.
- Aguilar-Aguilar challenges the FARO as a violation of his Fifth Amendment procedural due process rights and seeks review under 8 U.S.C. § 1252(a)(1).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the simultaneous NOI and FARO violate due process? | Aguilar-Aguilar argues simultaneous issuance violated safeguards. | DHS contends procedures suffice and rights to respond are preserved. | No due process violation; no constitutionally protected entitlement to discretionary relief. |
| Was Aguilar-Aguilar's due process claim waived or forfeited by not responding to the NOI? | Failure to respond should not bar review of the NOI and FARO. | Waiver/forfeiture can occur where rights are not timely asserted. | Not waived or forfeited; the service of NOI did not show concession of deportability. |
| Does § 1228(b) and related regulations provide substantive predicates limiting DHS discretion to grant discretionary relief? | Petitioner has a protected interest in relief if criteria are met. | Discretionary relief is inherently non-binding; no substantive predicates exist. | Petitioner has no liberty interest in discretionary relief; no substantive predicates to compel outcome. |
Key Cases Cited
- Hamilton v. Gonzales, 485 F.3d 564 (10th Cir. 2007) (final order review rules; not reviewable when no final order)
- Olim v. Wakinekona, 461 U.S. 238 (1983) (due process protects liberty interests; process must correspond to a protected interest)
- Arambula-Medina v. Holder, 572 F.3d 824 (10th Cir. 2009) (no constitutionally protected interest in discretionary relief absent statutory predicates)
- Kentucky Dept. of Corr. v. Thompson, 490 U.S. 454 (1989) (establishing substantive predicates creates protected interest in outcome)
- United States v. Olano, 507 U.S. 725 (1993) (waiver vs forfeiture; timely assertion of rights)
- Schroeck v. Gonzales, 429 F.3d 947 (10th Cir. 2005) (procedural due process protections in removal proceedings)
- Escoto-Castillo v. Napolitano, 658 F.3d 864 (8th Cir. 2011) (exhaustion requirement for motions to reopen/reconsider in § 1228(b) context)