Israel Alvarado-Herrera v. Merrick Garland
993 F.3d 1187
| 9th Cir. | 2021Background
- Alvarado-Herrera, a Honduran national, was placed in expedited removal and removed in 2013; he unlawfully reentered in 2017 and DHS reinstated the 2013 removal order.
- He expressed fear of return; an asylum officer conducted a reasonable fear screening and issued a negative determination as to both persecution and torture.
- Alvarado-Herrera requested de novo review by an immigration judge (IJ); the IJ affirmed the asylum officer’s determination.
- He petitioned for review raising: (a) challenges to the validity of the 2013 expedited removal order (signature and form issues), (b) statutory and due-process attacks on the reasonable-fear screening regime, and (c) factual challenges to the IJ’s reasonable-fear findings.
- The Ninth Circuit dismissed the collateral attack on the expedited removal order for lack of jurisdiction, upheld the agency’s screening procedures and due-process framework, but found the record lacked substantial evidence to deny his CAT claim and remanded for an IJ hearing limited to CAT relief.
Issues
| Issue | Alvarado-Herrera's Argument | Government's Argument | Held |
|---|---|---|---|
| Jurisdiction to review validity of 2013 expedited removal (signature and I-860 back) | The 2013 order was invalid for failing to comply with regulatory signature/acknowledgment requirements, so reinstatement was improper. | §1231(a)(5) and §1252(e) preclude collateral review of reinstated expedited removal orders here. | Dismissed for lack of jurisdiction; expedited removal orders are reviewable only in habeas on narrow statutory questions. |
| Statutory authority to use reasonable-fear screening in reinstatement proceedings | Congress intended non-citizens who assert fear to receive full IJ hearings; agency lacked authority to create a screening gate. | Screening reconciles §1231(a)(5)’s streamlined removal aim with FARRA/CAT obligations; agency reasonably filled statutory gap. | Denied; Chevron step one ambiguous and step two permits the screening regime as a reasonable construction. |
| Due process right to present new evidence at IJ review hearing | Due process requires ability to present new evidence at IJ review because stakes are life-or-death. | IJ review is appellate/de novo of the asylum officer’s record; due process doesn’t require new-evidence presentation when first-instance opportunity existed. | Denied; no constitutional violation—review hearing is appellate in nature and IJ stated he reviewed de novo. |
| Substantial-evidence challenge to reasonable-fear findings (persecution and CAT) | He established reasonable fear of persecution and torture based on gang retaliation and alleged police complicity. | Record does not show harm on account of a protected ground (persecution) or torture with government consent/acquiescence. | Mixed: Substantial evidence supports denial as to persecution; substantial evidence does NOT support denial as to torture—remand for IJ hearing limited to CAT claim. |
Key Cases Cited
- Morales-Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir.) (tension between reinstatement rules and reviewability)
- Garcia de Rincon v. DHS, 539 F.3d 1133 (9th Cir.) (limits on collateral attacks to reinstated orders)
- DHS v. Thuraissigiam, 140 S. Ct. 1959 (2020) (statutory limits on judicial review of expedited removal)
- Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984) (agency deference framework)
- Bartolome v. Sessions, 904 F.3d 803 (9th Cir.) (reasonable-fear standard and IJ review scope)
- Ayala v. Sessions, 855 F.3d 1012 (9th Cir.) (appellate review after IJ affirmation)
- Perez-Guzman v. Lynch, 835 F.3d 1066 (9th Cir.) (reasonableness of screening balance)
- Zetino v. Holder, 622 F.3d 1007 (9th Cir.) (gang violence not persecution absent protected ground)
- Barajas-Romero v. Lynch, 846 F.3d 351 (9th Cir.) (CAT acquiescence standard)
- Xochihua-Jaimes v. Barr, 962 F.3d 1175 (9th Cir.) (practical realities of screening interviews and evidence)
- Diaz-Reynoso v. Barr, 968 F.3d 1070 (9th Cir.) (government awareness rather than incident-specific knowledge can satisfy acquiescence)
- Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006) (eligibility for relief despite reinstatement language)
- Andrade-Garcia v. Lynch, 828 F.3d 829 (9th Cir.) (CAT eligibility in reinstatement context)
- Madrigal v. Holder, 716 F.3d 499 (9th Cir.) (low-level official acquiescence may suffice)