Francisca Morales De Soto v. Loretta E. Lynch, 2016 U.S. App. LEXIS 9794

Morales, a Mexican national, was subject to an expedited removal order after an attempted entry in January 2000, then unlawfully reentered and has lived in the U.S. since with her U.S.-citizen husband and three minor children.
In July 2007 she applied to adjust status and filed Form I-212 (consent to reapply) and Form I-601 (waiver); all were denied because she was inadmissible due to unlawful reentry.
ICE notified Morales in July 2009 of its intent to reinstate the 2000 removal order; Morales filed a petition for review and obtained a stay of removal.
Morales does not challenge the original 2000 removal order’s validity, but challenges ICE’s reinstatement decision and seeks remand for reconsideration in light of subsequent ICE memoranda on prosecutorial discretion.
She also contends ICE acted prematurely by reinstating removal before exhaustion of her appeal of the I-212 denial; she concedes as a matter of law she is ineligible for the I-212 waiver.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether intervening ICE policy memoranda require remand so ICE can reconsider reinstatement	Morton and Sandweg memos change ICE discretion framework and thus remand is required	Memos do not change law; exercising discretion is unreviewable and remand is unnecessary	Denied — remand not required for change in internal prosecutorial-discretion memos
Whether ICE abused discretion by failing to explain reasons for reinstatement (due process)	Reinstatement violated due process because ICE did not state reasons for exercising discretion	Prosecutorial discretion is largely unreviewable; court need not probe agency reasons absent unusual circumstances	Denied — no due-process obligation to provide reasons here
Whether ICE erred by reinstating removal before Morales exhausted administrative appeal of I-212 denial	ICE should have waited until appeal period/exhaustion to reinstate	No regulatory or legal requirement to delay reinstatement pending appeal; Morales was ineligible for I-212 anyway	Denied — ICE not required to wait for appeal/exhaustion
Whether this case is like Villa-Anguiano (warranting remand)	Villa-Anguiano supports vacatur/remand where underlying removal is shown invalid or agency overlooked material new judicial findings	Distinguishable: Villa-Anguiano involved judicial invalidation of prior removal and agency ignorance of that finding	Denied — no similar intervening judicial finding or agency failure to consider material facts

Castro-Cortez v. INS, 239 F.3d 1037 (9th Cir.) (jurisdiction to review reinstatement order itself)
Morales-Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir. en banc) (factual predicates for reinstatement)
Villa-Anguiano v. Holder, 727 F.3d 873 (9th Cir. 2013) (remand required where judicial finding invalidates prior removal and agency may have overlooked it)
NLRB v. Food Store Emps. Union, 417 U.S. 1 (1974) (remand after intervening agency policy change in certain circumstances)
Heckler v. Chaney, 470 U.S. 821 (1985) (agency enforcement/prosecutorial discretion generally unreviewable)
Motor Vehicles Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (court may not supply reasons for agency action)
Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) (dangers of judicially probing selective enforcement in immigration)
Movsisian v. Ashcroft, 395 F.3d 1095 (9th Cir. 2005) (abuse of discretion when agency fails to provide reasoned explanation)
United States v. Banuelos-Rodriguez, 215 F.3d 969 (9th Cir. 2000) (limited review of prosecutors’ charging decisions)
Ahmed v. Holder, 569 F.3d 1009 (9th Cir. 2009) (continuance pending visa-appeal differs from reinstatement context)