Eligio Valdiviez-Hernandez v. Eric Holder, Jr.
2013 U.S. App. LEXIS 23949
| 5th Cir. | 2013Background
- Valdiviez-Hernandez, Mexican native, entered the U.S. unlawfully as a child in the 1960s and lived there continuously until removal.
- ICE investigated Valdiviez for using the identity of a deceased person and found possession of stolen Social Security number to obtain property and vehicles, among other things.
- Agents found thirteen firearms in Valdiviez’s home and vehicle during a search warrant execution.
- Valdiviez pleaded guilty in 2011 to illegal alien in possession of a firearm (18 U.S.C. § 922(g)(5)).
- DHS issued a Notice of Intent in January 2012 enforcing expedited removal under INA § 238(b); Valdiviez did not respond in writing; a Final Administrative Removal Order (FARO) followed in February 2012.
- Valdiviez challenged the FARO, sought asylum review, was removed to Mexico while review was pending, and the court ultimately denied relief and held expedited removal applicable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether expedited removal under § 1228(b) applies to non-admitted aliens. | Valdiviez: § 1228(b) requires admission; not admitted means not subject. | Valdiviez is within § 1228(b) scope despite non-admission; expedited removal covers non-admitted aggravated felons. | Expedited removal applies to all non-admitted aliens with aggravated felonies. |
| Whether the FARO correctly denied discretionary relief like Registry. | Valdiviez: may be eligible for discretionary relief under INA § 249 (Registry). | § 1228(b)(5) bars any discretionary relief for described aliens. | Valdiviez is statutorily ineligible for discretionary relief. |
| Whether the court had jurisdiction and exhausted administrative remedies for review. | Exhaustion not required for legal questions; DHS lacks authority to foreclose review. | Exhaustion is jurisdictional; no right to review after expedited removal absent exhaustion; DHS procedures govern. | Court had jurisdiction to review legal questions; exhaustion not required for these claims. |
Key Cases Cited
- Lopez-Dubon v. Holder, 609 F.3d 642 (5th Cir. 2010) (exhaustion rule is jurisdictional for removal orders)
- Zhang v. INS, 274 F.3d 103 (2d Cir. 2001) (Congress’s goal to expedite removal of aggravated felons under IIRIRA)
- Hernandez-Vermudez, 356 F.3d 1011 (9th Cir. 2004) (agency interpretation that § 1228(b) applies to non-lawful permanent residents)
- Bazan-Reyes v. I.N.S., 256 F.3d 600 (7th Cir. 2001) (expedited removal covers aliens not admitted for permanent residence)
- United States v. Benitez-Villafuerte, 186 F.3d 651 (5th Cir. 1999) (statutory bar to discretionary relief for expedited-removal aliens)
- Bamba v. Riley, 366 F.3d 195 (3d Cir. 2004) (expedited removal applies regardless of admission status)