20-70115
9th Cir.Nov 9, 2021Background
- Petitioner Anthony Guerrier, a Haitian Creole speaker, illegally entered the U.S. in November 2019 and was apprehended shortly after entry. He was placed in expedited removal and referred for a credible-fear interview.
- Guerrier expressed a desire for counsel during the credible-fear interview and later said he had not received or understood a provided list of attorneys because he does not speak English.
- An asylum officer found no credible fear; a supervisor and then an immigration judge affirmed the negative credible-fear determination. The IJ told Guerrier there is no right to appointed counsel in credible-fear review.
- Guerrier filed a petition for review in the Ninth Circuit challenging the IJ’s negative credible-fear ruling, asserting deprivation of his statutory right to consult and a due-process violation.
- The Government moved to dismiss for lack of subject-matter jurisdiction under 8 U.S.C. § 1252(a)(2)(A) and (e)(2); the Ninth Circuit considered whether a previously recognized “colorable constitutional claim” exception preserved jurisdiction.
- The panel concluded Guerrier raised a colorable claim that he was deprived of his statutory right to consult, but held that DHS v. Thuraissigiam foreclosed the “colorable constitutional claim” exception here and dismissed the petition for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court has jurisdiction to review direct challenges to expedited removal orders under § 1252(a)(2)(A) and § 1252(e)(2) | Guerrier contends the court can review his challenge because he raises a colorable constitutional claim. | The Government argues § 1252(a)(2)(A) and § 1252(e)(2) strip courts of jurisdiction except for three habeas issues; Guerrier’s claims fall outside them. | Court: Generally no jurisdiction; statutory limits apply and claims must fit § 1252(e)(2) habeas categories. |
| Whether a “colorable constitutional claim” exception to the jurisdictional bar allows review of constitutional/process defects in expedited removal | Guerrier argues the IJ’s failure to secure meaningful access to counsel and language support is a colorable constitutional claim that preserves jurisdiction. | Government maintains no such exception applies to override the clear statutory jurisdictional limits. | Court: Previously recognized in Pena as a narrow possibility, but this exception is abrogated under the facts here by Thuraissigiam. |
| Whether Thuraissigiam controls and precludes recognition of the colorable-claim exception | Guerrier attempted to distinguish Thuraissigiam on procedural posture (habeas vs. direct appeal). | Government relied on Thuraissigiam to assert statutory scheme provides the only rights and review Congress intended. | Court: Thuraissigiam controls; due-process rights for those apprehended shortly after unlawful entry are coextensive with statutory rights, so no extra-statutory forum is required. |
| Whether Guerrier was deprived of his statutory right to consult (language/access) such that review is required | Guerrier argues he was denied the ability to consult because information wasn’t provided in his language and the IJ should have postponed review. | Government maintains the statutory consultation procedures were provided and jurisdictional bar prevents review. | Court: Although Guerrier raised a colorable claim on the record, Thuraissigiam prevents judicial review here; petition dismissed for lack of jurisdiction. |
Key Cases Cited
- DHS v. Thuraissigiam, 140 S. Ct. 1959 (2020) (Due Process Clause does not require judicial review beyond statutory procedures for aliens apprehended shortly after unlawful entry)
- Pena v. Lynch, 815 F.3d 452 (9th Cir. 2016) (recognized a potential “colorable constitutional claim” avenue but dismissed petition where no such claim was shown)
- Garcia de Rincon v. DHS, 539 F.3d 1133 (9th Cir. 2008) (statutory limits on judicial review of expedited removal and scope of re-vesting clause)
- Alvarado-Herrera v. Garland, 993 F.3d 1187 (9th Cir. 2021) (applied § 1252(e)(2) bar to challenges involving reinstated expedited removal orders)
- Nishimura Ekiu v. United States, 142 U.S. 651 (1892) (longstanding principle regarding plenary political authority over admission of aliens)
- Zadvydas v. Davis, 533 U.S. 678 (2001) (discussion of the scope of rights entitled to noncitizens with respect to admission)
- Boumediene v. Bush, 553 U.S. 723 (2008) (Suspension Clause jurisprudence invoked in related statutory-review analyses)