Pena v. Lynch
2016 U.S. App. LEXIS 2813
| 9th Cir. | 2015Background
- Pena, a Salvadoran national, entered the U.S. without documentation and was placed in expedited removal after crossing the Rio Grande.
- During initial contacts Pena first said he did not fear return, later expressing a fear and requesting asylum; an asylum officer concluded he lacked a credible fear.
- Pena sought review by an Immigration Judge (IJ); he was given Spanish-language notice of right to counsel but appeared pro se and told the IJ he did not intend to have an attorney present.
- The IJ affirmed the asylum officer's negative credible-fear finding, informed Pena the decision was final, and the Board of Immigration Appeals dismissed Pena's appeal for lack of jurisdiction under the expedited removal rules.
- Pena petitioned this court, arguing the jurisdiction-stripping provision of 8 U.S.C. § 1252(a)(2)(A) unconstitutionally denied him a forum to raise a procedural due process claim that the IJ failed to elicit a knowing and voluntary waiver of counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1252(a)(2)(A) leaves Pena without any judicial forum to raise a due process challenge to an expedited removal order | Pena: the jurisdictional bar denies any forum to challenge IJ’s alleged failure to obtain a knowing, voluntary waiver of counsel | Govt: statute bars review of expedited removal orders except in narrow habeas and statutory exceptions, so court lacks jurisdiction | Court: Dismissed for lack of jurisdiction; statute does not deny all judicial forums and Pena did not present a colorable constitutional claim |
| Whether Pena raised a colorable constitutional claim sufficient to overcome the jurisdictional bar | Pena: IJ’s failure to elicit a proper waiver of counsel amounted to a constitutional deprivation | Court/Amicus: IJ obtained an express, voluntary waiver on the record, so no colorable claim | Held: No colorable constitutional claim because Pena expressly waived counsel |
| Whether §1252(a)(2)(D) re‑vests jurisdiction for due process claims arising from expedited removal | Pena: §1252(a)(2)(D) re‑vests courts with jurisdiction over constitutional claims generally | Govt/Court: Re‑vestment does not extend to expedited removal review; §1252(a)(2)(A) limits review to §1252(e) habeas avenues | Held: Re‑vestment does not overcome §1252(a)(2)(A) bar for expedited removal |
| Whether other limited avenues (e.g., habeas) render the statute constitutional as applied to Pena | Pena: available avenues are illusory and provide no relief | Court: Some statutory avenues (habeas scope) remain; here they suffice to defeat a claim that Congress left no forum | Held: Statute retains some judicial review avenues; not unconstitutional as applied |
Key Cases Cited
- Flores-Miramontes v. I.N.S., 212 F.3d 1133 (9th Cir. 2000) (habeas provides a forum for certain expedited removal claims)
- Garcia de Rincon v. Dep’t of Homeland Sec., 539 F.3d 1133 (9th Cir. 2008) (§1252(a)(2)(A) bars review of expedited removal orders except limited §1252(e) habeas inquiries)
- Webster v. Doe, 486 U.S. 592 (1988) (statute construing to deny any judicial forum for a colorable constitutional claim raises serious constitutional questions)
- Shunaula v. Holder, 732 F.3d 143 (2d Cir. 2013) (no jurisdiction to review due process challenges to expedited removal when removal is not used as predicate for criminal prosecution)
- United States v. Raya-Vaca, 771 F.3d 1195 (9th Cir. 2014) (collateral attack on removal order available when order is a predicate element of a criminal conviction)