Delma Garcia v. Loretta E. Lynch
671 F. App'x 577
| 9th Cir. | 2016Background
- Delma Angelica Garcia, a Mexican national, petitioned for review of DHS's September 17, 2010 order reinstating her April 1998 expedited removal order.
- The court’s review is governed by 8 U.S.C. § 1252 and is limited for reinstatement orders to agency compliance with reinstatement regulations.
- Garcia did not dispute the three factual elements required for reinstatement (alien status, prior removal order, illegal reentry).
- Garcia argued the reinstatement violated due process because she was denied a hearing before an immigration judge with counsel; she also raised collateral challenges to the underlying 1998 expedited removal order.
- The record includes USCIS’s 2007 denial of Garcia’s adjustment of status based on a false claim of U.S. citizenship; Garcia did not seek or claim eligibility for an inadmissibility waiver under 8 U.S.C. § 1182(a)(6)(C)(ii)(II).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether reinstatement without an IJ hearing and counsel violated due process | Garcia: she was entitled to an IJ hearing with counsel before reinstatement | DHS: reinstatement statute/regulation do not require an IJ hearing or appointed counsel | Denied — Morales‑Izquierdo forecloses a right to an IJ hearing before reinstatement and finds procedures constitutional |
| Whether reinstatement complied with reinstatement-regulation inquiries | Garcia: did not contest the three regulatory inquiries | DHS: showed compliance with the three required inquiries | Denied as to this claim — petitioner did not challenge those elements |
| Whether court has jurisdiction to review collateral attacks on the expedited removal order | Garcia: sought collateral attacks on the 1998 expedited removal | DHS: expedited removal orders carry additional jurisdictional bars under §1252 | Dismissed — court lacks jurisdiction to entertain collateral attacks on expedited removal |
| Whether court may review USCIS denial of adjustment of status | Garcia: sought review of 2007 denial | DHS: agency denial based on false claim and statutory bars; jurisdiction limited | Partially allowed jurisdiction to consider the USCIS denial (court took judicial notice) but did not reach waiver/adjustment eligibility issues because Garcia did not claim applicable waiver |
Key Cases Cited
- Garcia de Rincon v. DHS, 539 F.3d 1133 (9th Cir. 2008) (limits review of reinstatement orders to compliance with reinstatement regulations)
- Morales‑Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir. 2007) (en banc) (aliens are not entitled to an IJ hearing before reinstatement; procedures comport with due process)
- Morales‑Izquierdo v. Dep’t of Homeland Sec., 600 F.3d 1076 (9th Cir. 2010) (addresses jurisdictional contours for reviewing related agency decisions)
- Dent v. Holder, 627 F.3d 365 (9th Cir. 2010) (court may take judicial notice of agency records)
- Garfias Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (en banc) (overruled parts of prior precedents on other grounds)
- Simeonov v. Ashcroft, 371 F.3d 532 (9th Cir. 2004) (addressing statutory bars to adjustment of status)