Beekhan v. Holder
634 F.3d 723
| 2d Cir. | 2011Background
- Beekhan is a Guyana native who was ordered removed in Jan 1997 and physically removed, then reentered in Feb 1997.
- Approximately ten years later Beekhan sought adjustment of status claiming entry without inspection at the Canadian border.
- USCIS found Beekhan was a previously deported alien who entered without authorization and transferred her to ICE.
- ICE reinstated Beekhan's prior removal order on June 22, 2009 and she was informed of the findings.
- Beekhan sent July 15, 2009 a letter with a signed affidavit claiming she reentered using another person's passport; ICE granted a 6-month stay but did not otherwise respond.
- Beekhan petitioned for judicial review on July 22, 2009, arguing the affidavit should be considered, records should include the affidavit, and an evidentiary hearing is due under due process.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether using another's passport to reenter triggers illegal reentry under §1231(a)(5). | Beekhan argues the affidavit shows non-illegal reentry. | Beekhan reentered without the Attorney General's express consent using a passport not her own. | Reinstatement eligible even with non-own passport reentry. |
| Whether the affidavit and its consideration affect reinstatement or due process. | Affidavit should be considered and included; due process requires an evidentiary hearing. | Even crediting the affidavit, eligibility for reinstatement remains; no hearing necessary. | Even if credited, Beekhan remains eligible; petition denied without need for evidentiary hearing. |
| Whether the agency properly denied relief or abused its discretion by reinstating the removal order. | N/A (as arguments focus on affidavit and process). | ICE properly reinstated the removal order under 8 U.S.C. §1231(a)(5). | Petition for review denied; reinstatement upheld. |
Key Cases Cited
- United States v. Rodriguez, 416 F.3d 123 (2d Cir. 2005) (needs intent to reenter but not knowledge of permission requirement)
- United States v. Oladipupo, 346 F.3d 384 (2d Cir. 2003) (reentry without authorization supports reinstatement)