Alejandro Israel VILLA-ANGUIANO, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
No. 08-74585.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted April 9, 2013. Filed Aug. 14, 2013.
727 F.3d 873
Before: MARSHA S. BERZON, RICHARD C. TALLMAN, and MILAN D. SMITH, JR., Circuit Judges.
The district court concluded that the government‘s position was substantially justified because the government prevailed at the administrative and district court levels before losing in this court. Although it was proper for the district court to consider the government‘s success in the district court as part of the EAJA analysis, see Lewis v. Barnhart, 281 F.3d 1081, 1084 (9th Cir.2002), the court erred by considering the government‘s success at the administrative level. The ALJ‘s decision was not supported by substantial evidence. That the ALJ agreed with the government, therefore, does not support the conclusion that the government‘s position was substantially justified.
CONCLUSION
The order of the district court denying Meier‘s motion for attorney‘s fees and costs under EAJA is reversed. The case is remanded for an award of fees and costs.
REVERSED AND REMANDED.
Carol Federighi (argued), Senior Litigation Counsel; Tony West, Assistant Attorney General; William C. Peachey, Assistant Director, United States Department of Justice, Civil Division, Washington, D.C., for Respondent.
OPINION
BERZON, Circuit Judge:
Alejandro Israel Villa-Anguiano (“Villa“) petitions for review of the government‘s reinstatement of a removal order issued in 1997. Villa contends that the Immigration and Customs Enforcement (“ICE“) agency of the Department of Homeland Security (“DHS“) may not deport him on the basis of his prior removal order, because a federal district court found that due process violations in his 1997 immigration hearing rendered the removal order invalid as a predicate for criminal prosecution under
We have jurisdiction under
I.
This case comes before us in an unusual posture. Villa, who entered the United
Villa concedes that he was provided notice and an opportunity to contest reinstatement on May 4, 2008, as required by
Before the district court on the illegal reentry charge, and now with the assistance of counsel, Villa collaterally attacked his 1997 removal order. See
The district court rejected the government‘s arguments, finding: (1) that Villa had demonstrated a deprivation of his right to counsel in the group immigration hearing; and (2) that Villa was prejudiced by the resulting due process violation, because he was eligible for relief under
On October 10, 2008, the day after Villa‘s criminal proceedings were dismissed, immigration officials “reinstated on today‘s date” the “prior order of removal by an Immigration Judge,” and Villa was physically removed. Villa was neither notified at that point that the order was going to be issued and executed nor given an opportunity to object, either in writing or orally, to the reinstatement. He was denied such opportunity despite the very relevant development that occurred in the five months since reinstatement proceedings were initiated—namely, the district court‘s determination that the 1997 removal order was constitutionally infirm.
ICE was aware of the criminal prosecution from the outset. The Record of Deportable/Inadmissible Alien, Form I-213, dated May 4, 2008, indicated that Villa was “being held in DHS custody pending criminal prosecution for violation of
This petition for review followed.
II.
The INA‘s reinstatement provision,
Under
Even though an alien is not entitled to a hearing before an immigration judge on the issue of reinstatement of a prior removal order, nothing in
ICE regularly exercises “prosecutorial discretion” in “a broad range of discretionary enforcement decisions,” including “deciding to issue, reissue, serve, file, or cancel a Notice to Appear (NTA) [and] seeking expedited removal or other forms of removal by means other than a formal removal proceeding in immigration court.” Memorandum from John Morton, Director, ICE, on Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention and Removal of Aliens, at 2 (June 17, 2011). Immigration officers “who have authority to institute immigration removal proceedings or to otherwise engage in civil immigration enforcement,” id. at 3, “are not only authorized by law but expected to exercise discretion in a judicious manner at all stages of the enforcement process,” Memorandum from Doris Meissner, Commissioner, Immigration and Naturalization Service, on Exercising Prosecutorial Dis-
III.
Villa does not contest the factual predicates for the reinstatement order. Nor has he asserted a gross miscarriage of justice in the underlying immigration hearing, which could justify this court‘s review of the constitutionality of the prior removal order.4 Instead, Villa challenges the propriety of reinstating a removal order that has been invalidated on constitutional grounds for purposes of criminal prosecution.5
This precise situation has not arisen in any reported cases of which we are aware. The government explained at oral argument a likely reason for that gap: “In many cases where the district court does dismiss the indictment [ICE officers] go ahead and put the alien in regular removal proceedings.” That is, rather than reinstating an order found to be an invalid predicate for a criminal reentry prosecution, the agency often exercises its discretion to initiate plenary removal proceedings (with the requisite notice, hearing before an immigration judge, right to appeal to the Board of Immigration Appeals, and right to seek judicial review in a court of appeals), following dismissal of a
As explained, an incorrect statement on the addendum to the Form I-213 states that Villa served time for a
To be sure, the pendency of reinstatement proceedings does not provide an alien with a new avenue to challenge the underlying removal order. As we made clear in Morales-Izquierdo, 486 F.3d at 498, allowing an alien to manufacture an opportunity to contest his earlier removal by reentering the country illegally, thereby triggering removal proceedings anew, would create perverse incentives. But we have not considered a situation like the present one, in which the government itself invites judicial scrutiny of the underlying removal order by instigating a criminal prosecution under
We so conclude for the following reasons: The regulation implementing
Those regulatory requirements respect an unlawfully present alien‘s right to be heard prior to removal, a right which the Supreme Court has long recognized as grounded in the Due Process Clause.8
Due process, in turn, entitles an unlawfully present alien to consideration of issues relevant to the exercise of an immigration officer‘s discretion. Larita-Martinez v. INS, 220 F.3d 1092, 1095 (9th Cir.2000), for example, held that due process required the Board of Immigration Appeals to consider “all relevant evidence submitted on appeal” when reviewing the wholly discretionary denial of an application for suspension of deportation.
For the requirements of
Moreover, the agency must consider all favorable and unfavorable factors relevant to the exercise of its discretion; failure to do so constitutes an abuse of discretion. See An Na Peng v. Holder, 673 F.3d 1248, 1253 (9th Cir.2012) (the BIA abuses its discretion when it fails to consider all relevant factors bearing on the balance of equities or an application for relief); Xiao Fei Zheng v. Holder, 644 F.3d 829, 833 (9th Cir.2011) (same); cf. United States v. $11,500.00 in U.S. Currency, 710 F.3d 1006, 1011 (9th Cir.2013) (a district court abuses its discretion if it fails to consider factors relevant to the exercise of its discretion). If the procedures used by ICE do not assure that the decision-makers obtain the requisite information before the decision is made, then it is unlikely that the decision made will be a proper one under the abuse of discretion standard.9
The Third Circuit has considered a somewhat analogous circumstance, in which an alien contested reinstatement on the asserted grounds that his prior removal order was invalidated by a court and that he did not reenter the country illegally. See Ponta-Garcia v. Att‘y Gen. of the U.S., 557 F.3d 158, 164 (3d Cir.2009). Recognizing the petitioner‘s atypical circumstances, the Third Circuit remanded
IV.
The government acknowledges that, had it known of the district court‘s findings, it quite possibly would have exercised its discretion not to pursue reinstatement of Villa‘s 1997 removal order. Consequently, Villa was prejudiced by the ICE agents’ misinformation or lack of information regarding his criminal prosecution, as well as by the absence of an opportunity to contest the reinstatement determination at a meaningful time—namely, before the reinstatement order finally issued and was executed, and after new, relevant circumstances had arisen. Accordingly, we remand to ICE to provide that opportunity and to reconsider its reinstatement determination in light of the district court‘s findings regarding Villa‘s 1997 removal proceedings. We express no view as to the outcome of that determination on remand.
The petition is GRANTED, the reinstatement order is VACATED, and we REMAND to ICE for reconsideration and further proceedings consistent with this disposition.
TALLMAN, Circuit Judge, dissenting:
The alien, a convicted killer who illegally re-entered the United States after his prior deportation, has once again been removed after the district court dismissed his 2008 criminal re-entry charge because the 1997 removal order was technically flawed. Congress has by statute strictly limited what process is due to a petitioner who re-enters after a prior deportation. Our court sitting en banc has carefully limited the scope of our review of reinstated removal orders. See generally Morales-Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir.2007) (en banc). My colleagues in the majority nonetheless create a new procedural rule by judicial legislation, which the Supreme Court has held we may not do.
The majority holds that whenever the United States chooses to criminally prosecute an alien who unlawfully entered the country and fails in that prosecution, an immigration officer—who has already complied with all of the statutory and regulatory requirements for reinstatement of a prior removal order—must give the alien a new opportunity to implore the officer to decline reinstatement and instead open new removal proceedings. It might be a perfectly sensible rule if Congress or the agency prescribed it. But neither Congress nor the agency has done so. Instead, the majority‘s new rule has only one source: the whole cloth from which the majority has woven it.
The Supreme Court has told us it is “improper simply to impose deportation procedures ... because the reviewing court may find them preferable.” Landon v. Plasencia, 459 U.S. 21, 35, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982). In an effort to impose its preferred procedures into ICE‘s process for reinstatement of removal orders, the majority has distorted constitutional due process requirements and undercut controlling en banc precedent. I respectfully dissent.
I
In 1997, the government removed Alejandro Israel Villa-Anguiano (“Villa“) after
The majority concedes that as of that date, the government needed no more to exercise its discretion to reinstate his prior order of removal and summarily deport him from the United States. However, the immigration officer could not remove Villa immediately because the United States opted to prosecute Villa for criminal re-entry under
The reinstatement statute requires the Department of Homeland Security to do nothing more to reinstate the removal order that Villa knowingly flaunted. In
If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry.
The Department of Homeland Security has promulgated
First, the officer must confirm that the alien has been subject to a prior order of removal.
Second, the officer must confirm the identity of the alien—that is, make sure that the person in question and the alien who was previously removed are in fact one and the same. Id.
Third, the officer must confirm that the alien “unlawfully reentered the United
The district court proceedings could not render Villa‘s reentry “lawful.” The district court had jurisdiction only to determine whether Villa‘s re-entry was criminal, not whether it was lawful. The district court‘s conclusion that Villa did not commit a new crime in no way alters the inquiry for the immigration officer conducting a reinstatement, which is simply: did this alien violate a removal order when he entered the United States? The answer unquestionably is yes. Villa unlawfully re-entered the United States. If the agency decides he must go, then he must go.
Therefore, both the laws enacted by Congress and the Department of Homeland Security‘s permissible construction of those laws allowed the immigration officer to reinstate Villa‘s prior order of removal, regardless of whether the district court concluded that Villa‘s re-entry also constituted a federal crime. On the limited review we may conduct of a reinstatement proceeding, this suffices to deny relief. Morales-Izquierdo, 486 F.3d at 491.
II
The majority implicitly agrees that under the law as it currently stands, Villa is eligible for reinstatement. My colleagues must acknowledge that although a district court may determine that a removal order does not validly support a criminal prosecution, that same court has no jurisdiction to grant relief from an administrative order of removal. The majority also knows that under our en banc decision in Morales-Izquierdo v. Gonzales, we do not allow aliens who have defied removal orders and re-entered the United States to put themselves in a better position than aliens “who respect our laws and wait patiently outside our borders seeking lawful admission.” 486 F.3d at 498. So without any statutory or regulatory foundation to grant relief, the majority falls back on a dubious procedural due process analysis.
If I understand the majority argument, it proceeds in three steps. First, the immigration officer has the discretion to choose to initiate new removal proceedings instead of reinstatement, even if the alien is, by statute, already susceptible to immediate reinstatement. Second, if the district court dismisses the criminal charge for illegal re-entry because the alien demonstrated fundamentally unfair infirmities in the original deportation order, the immigration officer may be more likely to start new removal proceedings instead of choosing reinstatement. Therefore, if the alien succeeds in his defense to the criminal charge, the Due Process Clause now requires the immigration officer to give the defendant yet another opportunity to be heard—not to argue that the alien is ineligible for reinstatement (because
One very important analytical step is missing: the majority provides next to no analysis regarding why the Due Process Clause compels such a result. Sure, the majority affords us a cursory citation to Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), a case governing the interest in Social Security benefits, “a statutorily created ‘property’ interest.” Id. at 332, 96 S.Ct. 893. But it provides no case telling us why the Due Process Clause requires that an agency must provide an alien the opportunity to tell the agency how it should exercise its prosecutorial discretion.
Although aliens are entitled to due process of law, they “must in the first instance possess a liberty or property interest.” Valencia-Alvarez v. Gonzales, 469 F.3d 1319, 1330 n. 13 (9th Cir.2006). Although we have considered aliens to have such an interest when they are eligible for discretionary relief from removal, we certainly have never held they have any liberty or property interest in how an agency exercises its purely discretionary decision on whether to prosecute. “[A]n agency‘s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency‘s absolute discretion.” Heckler v. Chaney, 470 U.S. 821, 831, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985). This common-sense conclusion derives from the steadfast principle that even citizens are not “entitled to judicial oversight or review of the decision to prosecute.” Albright v. Oliver, 510 U.S. 266, 274, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (quoting Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975)). Just as a criminal suspect has no procedural due process right to a hearing before a prosecutor to argue for a more lenient charge, Villa possesses no right to plead for any more than the law provides. This is a fundamental separation of powers issue, which the majority ignores when declaring remand is nonetheless required because the agency somehow abused its absolute discretion.
“While aliens have a right to fair procedures, they have no constitutional right to force the government to re-adjudicate a final removal order by unlawfully reentering the country.” Morales-Izquierdo, 486 F.3d at 498. In a reinstatement proceeding, “an alien‘s rights and remedies are severely limited.” Id. at 497. Villa possesses no fewer rights today, having had his removal order reinstated, than he did the day he unlawfully re-entered the country because “[t]he reinstatement order imposes no civil or criminal penalties, creates no new obstacles to attacking the validity of the removal order, and does not diminish petitioner‘s access to whatever path for lawful entry into the United States might otherwise be available to him under the immigration laws.” Id. at 498 (citations omitted).
Those laws grant Villa no entitlement to new removal proceedings. Perhaps Villa would possess a more concrete interest if the agency‘s regulations in any way spelled out this discretion which the majority insists the agency regularly practices.2 Yet
To the extent the majority relies on an internal ICE memorandum—which does not specifically address reinstatement—“[i]t is well settled that internal policy manuals of federal agencies do not generally create due process rights in others.” James v. U.S. Parole Comm‘n, 159 F.3d 1200, 1206 (9th Cir.1998). The memorandum itself explains that “there is no right to the favorable exercise of discretion by the agency,” and therefore the memorandum cautions that it “may not be relied upon to create any right or benefit, substantive or procedural.” Memorandum from John Morton, Director, ICE, on Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention and Removal of Aliens, at 6 (June 17, 2011).3
The standards that are actually set out in regulatory and statutory law establish that when ICE reinstates an alien‘s removal order, the alien only possesses an interest in how the ICE officer resolves three questions: (1) whether the alien was subject to a prior order of removal; (2) whether this alien is the alien described in that order; and (3) whether the alien illegally re-entered the country. On May 4, 2008, when he waived his opportunity to be heard, Villa and the agency possessed all of the information that would be relevant to those three determinations. His opportunity to be heard, at that time, could not have been more meaningful.
The majority agrees that Villa meets all of the requirements for reinstatement of a removal order under current statutory and regulatory law and that he waived his opportunity to contest whether those requirements were met. So how could the agency have abused its discretion by complying with federal law? Regardless of the answer, we lack jurisdiction to review an abuse of discretion argument that is merely recharacterized as a due process argument, Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir.2001)—precisely what the majority opinion does.4
Even if such a liberty interest existed, an alien bears the burden of proving the alleged violation prejudiced his or her interest. Cano-Merida v. INS, 311 F.3d 960, 965 (9th Cir.2002). Because Villa failed to make this due process argument in his briefing—which the majority has chosen to excuse and make for him—he made no showing of prejudice. But the majority argues that prejudice exists because the agency “quite possibly would have exercised its discretion not to pursue reinstatement of Villa‘s 1997 removal order.” Majority Op. at 882.
This assertion opens Pandora‘s box. Let us not forget that as he stands today, Villa—who committed a serious felony offense involving the taking of a life—cannot be criminally prosecuted for re-entering the United States. He can enter the country illegally as he pleases, and under his current removal order, the only thing the United States government can do is reinstate that order of removal and deport him again. It is highly unlikely that in any new removal proceedings, the agency would grant discretionary relief to a convicted killer who also ignores prior deportations by returning illegally. It is far more likely that Villa would be removed once again, but this time with a new removal order that would carry heavy criminal consequences for his next re-entry. Although Villa has no right to insist on such a proceeding, the majority has overstated the damage, if any, that the reinstatement of Villa‘s removal order has caused to his interests.
III
The majority concedes a point that should be absolutely clear: on remand, ICE has absolutely no obligation to reach a different result. Although by now the government has surely recognized it cannot punish Villa with anything more than deportation, it may, under
The majority opinion amounts to no more than a thinly veiled suggestion, cloaked in the mantle of due process, that ICE reconsider its decision to reinstate the prior removal order and instead open new removal proceedings from which years of litigation will ensue. Perhaps that would be the most sensible course of action, so that next time Villa would have no technical defense to a new felony conviction under
The majority opinion unnecessarily intrudes on the Executive Branch‘s administration of immigration policy and not only tells the Department of Homeland Security the criteria it must consider in the exercise of its prosecutorial discretion, but it also announces a novel holding that an alien who unlawfully re-enters the country has a due process right to influence the exercise of that prosecutorial discretion. Its rule adds requirements that have no basis in law. The Supreme Court has clearly told us not to do this. Landon, 459 U.S. at 35. Rather than remand on the basis of these nonexistent requirements, I would deny relief and leave Villa no worse off than where he stood before he willfully defied his removal order and unlawfully re-entered the country. I respectfully dissent.
MARSHA S. BERZON
UNITED STATES CIRCUIT JUDGE