ANTHONY GUERRIER v. MERRICK B. GARLAND, Attorney General
No. 20-70115
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
August 16, 2021
Amended November 9, 2021
8 F.4th 1066
Milan D. Smith, Jr. and John B. Owens, Circuit Judges, and Eduardo C. Robreno, District Judge.
Agency No. A213-193-324
ORDER AND AMENDED OPINION
On Petition for Review of an Order of an Immigration Judge
Argued and Submitted July 28, 2021 Pasadena, California
Order; Opinion by Judge Robreno
* The Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.
Immigration
The panel filed (1) an order amending its opinion, denying a petition for panel rehearing, and denying on behalf of the court a petition for rehearing en banc; and (2) an amended opinion dismissing for lack of jurisdiction Anthony Guerrier‘s petition for review of an immigration judge‘s negative credible fear determination which resulted in an order for his expedited removal.
Under
Guerrier argued that unlike Pena, where the immigration judge elicited a voluntary waiver of counsel during the petitioner‘s credible fear interview, Guerrier continually expressed a desire for counsel during his credible fear interview, and the Government failed to provide vital information in his native language. Guerrier argued that this failure violated his right to due рrocess, qualifying him for the “colorable constitutional claim” exception to the general rule that the court lacks jurisdiction to hear challenges to expedited orders of removal.
As an initial matter, the panel concluded that Guerrier raised a colorable constitutional claim that the Government deprived him of his statutory right to counsel at his credible fear hearing. However, the panel held that the Supreme Court‘s decision in DHS v. Thuraissigiam, 140 S. Ct. 1959 (2020), abrogated the “colorable constitutional claim” exception to the limits Congress placеd on the court‘s jurisdiction to review challenges to expedited removal orders under the facts of this case.
The panel explained that in Thuraissigiam, the Supreme Court concluded that a noncitizen who is detained shortly after unlawful entry cannot be said to have “effected an entry” into the country and therefore has only those rights regarding admission that Congress has provided by statute. In Thuraissigiam‘s case, the Supreme Court explained that Congress provided the right to a determination whether he
The panel rejected Guerrier‘s attempt to distinguish Thuraissigiam on the basis that Thuraissigiam filed a habeas petition and Guerrier did not. The panel explained that the difference in the procedural posture did not alter its analysis here, because in concluding that Thuraissigiam‘s due process rights were not violated, the Supreme Court emphasized that the due process rights of noncitizens who have not “effected an entry” into the country are coextensive with the statutory rights Congress provides. Bound by this precedent, the panel held that Thuraissigiam abrogated any “colorable constitutional claims” exception to the limits
Rajan O. Dhungana (argued), Federal Practice Group, Las Vegas, Nevada, for Petitioner.
Neelam Ihsanullah (argued), Trial Attorney; Anthony C. Payne, Assistant Director; Brian M. Boynton, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
Noor Zafar, Lee Gelernt, and Anand Balakrishnan, American Civil Liberties Union Foundation, Immigrants’ Rights Project, New York, New York; Cody Wofsy, American Civil Liberties Union Foundation, Immigrants’ Rights Project, San Francisco, California; for Amicus Curiae American Civil Liberties Union.
Brian C. Baran, Reichman Jorgensen Lehman & Feldberg LLP, Washington, D.C.; Kate Falkenstien, Reichman Jorgensen Lehman & Feldberg LLP, Redwood Shores, California; for Amicus Curiae Hever Alberto Mendoza Linares.
ORDER
The opinion filed August 16, 2021 (Docket Entry No. 45), and reported at 8 F.4th 1066, is amended by the Amended Opinion filed in its place concurrently with this order.
With these amendments, the full court has been advised of the petition for rehearing en banc, and no judge of the court has requested a vote on it.
Accordingly, the petition for panel rehearing and the petition for rehearing en banc are DENIED. No further petitions for rehearing will be accepted.
OPINION
ROBRENO, District Judge:
Petitioner Anthony Guerrier seeks review of an immigration judge‘s negative credible fear determination, which resulted in an order for his expedited removal. He acknowledges that we typically lack jurisdiction to review direct challenges to expedited removal orders but argues we have jurisdiction to review his petition because he raises a colorable constitutional claim.
Although our prior opinions have suggested that suсh claims may form a basis for our jurisdiction, the Supreme Court‘s decision in DHS v. Thuraissigiam, 140 S. Ct. 1959, 1964 (2020), abrogated the “colorable constitutional claim” exception to the limits Congress placed on our jurisdiction to review challenges to expedited removal orders under the facts of this case. Accordingly, we dismiss the petition for review for lack of jurisdiction.
A.
Under the applicable statutory provisions, noncitizens who lack valid entry documents at the time of their arrival to the United States are deemed “removable.” See DHS v. Thuraissigiam, 140 S. Ct. 1959, 1964 (2020) (quoting
However, Congress has provided expedited removal procedures for certain noncitizens, including those who (1) are “inadmissible because [they] lack[] a valid entry document,” (2) have not “been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility,” and (3) are “among those whom thе Secretary of Homeland Security has designated for expedited removal.” Id. at 1964-65 (quoting
“Applicants can avoid expedited removal by claiming asylum. If an applicant ‘indicates either an intention to apply for asylum’ or ‘a fear of persecution,’ the immigration officer ‘shall refer the alien for an interview by an asylum officer.‘” Id. (quoting
If the officer instead determines that the applicant lacks a credible fear, a supervisor reviews the determination. Id. (citing
If the immigration judge agrees with the asylum officer that the noncitizen does not have a credible fear of persecution or torture, “the case shall be returned to DHS for removal of the alien. The immigration judge‘s decision is final and may not be appealed.”
In sum, a noncitizen subject to expedited removal “has an opportunity at three levels to obtain an asylum hearing, and the applicant will obtain one unless the asylum officer, a supervisor, and an immigration judge all find that the
B.
Guerrier is a citizen of Haiti. His primary language is Creole, and he does not speak English. Guerrier entered the United States unlawfully in November 2019 and was apprehended by immigration authorities.1 He was issued an expedited removal order. He expressed fear that he would be persecuted if he were to return to Haiti and was consequently referred to an asylum officer for a credible fear interview.
During his credible fear interview, the asylum officer asked Guerrier whether he had an attorney or consultant. The following exchange occurred:
GUERRIER: For now, I do not have a lawyer, but I would like to have a lawyer help me.
OFFICER: An attorney is not required for this interview. Do you feel comfortable proceeding today without an attorney?
GUERRIER: If it‘s questions about my life, I can answer; but if it‘s complicated questions, then I don‘t know.
OFFICER: This interview is about your fear returning to Haiti. So I will be asking you
several questions about why you are afraid to return to Haiti. It is up to you if you would like to proceed w[ith] an attorney.
GUERRIER: I don‘t have a problem.
OFFICER: So you wish to proceed today w[ithout] an attorney?
GUERRIER: Yes, if you want to give me an attorney.
OFFICER: No sir, I do not have the authority to give you an attorney. This interview is about your fear returning to Haiti. So I will be asking you several questions about why you are afraid to return to Haiti. It is up to you if you would like to proceed w[ith] an attorney.
GUERRIER: Ok, I will answer your questions.
Guerrier proceeded without counsel. At the end of the interview, he asked for a list of lawyers. The asylum officer found that Guerrier failed to establish a credible fear of persecution.
Guerrier requested review by an immigration judge. Guerrier appeared at the credible fear review hearing without counsel. At the beginning of the hearing, the immigration judge asked Guerrier if he had any questions. Guerrier stated that he had been told he was going to be given a list of lawyers but had not received such a list. The immigration judge informed Guerrier that he was not entitled to
The instant petition for review followed. The Government filed a motion to dismiss the action for lack of subject matter jurisdiction, and Guerrier filed a motion for a stay of removal. We denied the motion to dismiss without prejudice to renewing the arguments and granted the stay of removal.
II.
“We determine our own jurisdiction de novo.” Pena v. Lynch, 815 F.3d 452, 455 (9th Cir. 2016) (citing Bolanos v. Holder, 734 F.3d 875, 876 (9th Cir. 2013)). “We also review constitutional claims de novo.” Id. (citing Coronado v. Holder, 759 F.3d 977, 982 (9th Cir. 2014)).
A.
Generally, we have jurisdiction to review final orders of removal. See
In turn, subsection (e) limits judicial review to three issues: “‘whether the petitioner is an alien‘; ‘whether the petitioner was ordered removed’ under an expedited removal order; and whether the petitioner can prove that he or she has lawful status in the United States as an asylee, refugee, or permanent resident.” Id. (quoting
We have recognized that although another provision of the IIRIRA—section 1252(a)(2)(D)—“re-vests courts with jurisdiction to review constitutional claims and questions of law otherwise barred” by the statute, the re-vesting provision “does not apply to the jurisdictional limitations codified elsewhere” in the section, including the aforementioned limitation in subparagraph (A) circumscribing judicial review of expedited removal orders. Garcia de Rincon v. DHS, 539 F.3d 1133, 1138 (9th Cir. 2008).
Applying these statutory provisions, we held in Pena v. Lynch, 815 F.3d 452, 457 (9th Cir. 2016), that this court
Before this court, the petitioner in Alvarado-Herrera argued DHS could not reinstate the prior order because the order failed to comply with two requirements imposed by the regulation governing expedited removal. 993 F.3d at 1191 (citing
The court concluded that it lacked jurisdiction to entertain these arguments. Id. It acknowledged that it does have jurisdiction to entertain collateral attacks on the validity of a removal order being reinstated where “the petitioner can show that a ‘gross miscarriage of justice’ occurred during the earlier removal proceedings.” Id. (quoting Garcia de Rincon, 539 F.3d at 1137–38). But it noted that “even that narrow sliver of jurisdiction is fоreclosed when the underlying order is an expedited removal order.” Id. (citing Garcia de Rincon, 539 F.3d at 1138-39). The court reached this conclusion by noting the aforementioned limits
Turning to the instant petition, Pena‘s holding that the court lacks jurisdiction to review a direct challenge to an expedited removal order would seem to foreclose Guerrier‘s rеquest for review of an immigration judge‘s negative credible fear determination. See 815 F.3d at 455. However, Guerrier argues that because he raises a “colorable constitutional claim,” he qualifies for an exception to the general rule that we lack jurisdiction to review challenges to expedited removal orders. We turn next to this issue.
B.
The issue of a possible “colorable constitutional claim” exception stems from our opinion in Pena v. Lynch, 815 F.3d 452, 456 (9th Cir. 2016), which involved a procedural due process challenge to the petitioner‘s expedited removal proceeding. After the asylum officer concluded that the petitioner had not shown a credible fear of persecution, the petitioner requested review of the officer‘s decision by an immigration judge. Id. at 454. In response, the petitioner received a form titled “Notice of Referral to Immigration Judge,” which provided, in part: “You may be represented in this proceeding, at no expense to the government, by an attorney or other individual authorized and qualified to represent persons before an Immigration Court. If you wish to be so reprеsented, your attorney or representative should appear with you at this hearing. . . .” Id.
The petitioner appeared before the immigration judge without an attorney. Id. The immigration judge asked the
We dismissed the petition, concluding that “because no claim listed in the statutory exceptions was raised,” we “lack[ed] jurisdiction to review any constitutional or statutory claims related to the underlying removal order.” Id. at 456 (quoting Garcia de Rincon, 539 F.3d at 1139). We noted, however, that “[b]oth the Supreme Court and this Circuit have suggested that a litigant may be unconstitutionally denied a forum when there is absolutely no avenue for judicial review of a colorable claim of constitutional deprivation.” Id. (first citing Webster v. Doe, 486 U.S. 592, 603 (1988); and then citing Flores-Miramontes v. INS, 212 F.3d 1133, 1136 (9th Cir. 2000)). But we concluded that the petitioner in Pena “d[id] not raise a colorable constitutional claim, since the Immigration Judge elicited a voluntary waiver of counsel,” and that “the jurisdiction-stripping provisions of the statute retain some
C.
Guerrier argues that unlike in Pena, where the immigration judge elicited a voluntary waiver of counsel during the petitioner‘s credible fear interview, Guerrier “continually expressed a desire for counsel during his credible fear interview, and the Government failed to provide vital information in [his] native language.” He argues this failure violated his right to due process, qualifying him for the “colorable constitutional claim” exception to the general rule that we lack jurisdiction to hear challenges to expedited orders of removal.
Although Guerrier argues the Government deprived him of a constitutional right to counsel, in the expedited removal context, a petitioner‘s due process rights are coextensive with the statutory rights Congress provides. See Thuraissigiam, 140 S. Ct. at 1982. With respect to representation, the expedited removal statute provides that a noncitizen who is eligible for an asylum interview “may consult with a person or persons of [his or her] choosing prior to the interview or any review thereof, according to
On the record before the court, Guerrier appears to raise the sort of “colorable constitutional claim” Pena envisions—i.e., a claim that the Government deprived him of the rights Congress afforded. Pena, 815 F.3d at 456. He alleges the Government deprived him of his statutory right to consult with a person of his choosing because it did not provide information about this right in his native language. Guerrier also contends the immigration judge should have postponed the credible fear review hearing after he informed the judge that he had not had the opportunity to consult with a person of his choosing. Accordingly, we conclude that Guerrier raises a colorable constitutional claim.
However, we nonetheless lack jurisdiction to review his petition beсause the Supreme Court‘s decision in Thuraissigiam, 140 S. Ct. at 1982-83, abrogated the “colorable constitutional claim” exception to the statutory limits on our jurisdiction under the facts of this case.
D.
Thuraissigiam involved a habeas petition filed by Vijayakumar Thuraissigiam, a Sri Lankan national who crossed the southern border to the United States and was detained for expedited removal within 25 yards of the border. 140 S. Ct. at 1967. He sought asylum, claiming he feared returning to Sri Lanka “because a group of men had once abducted and severely beaten him,” although “he did not know who the men were, why they had assaulted him, оr whether Sri Lankan authorities would protect him in the future.” Id. The asylum officer determined Thuraissigiam
Thuraissigiam then filed a federal habeas petition. Id. He argued “the immigration officials deprived him of ‘a meaningful opportunity to establish his claims’ and violated credible-fear procedures by failing to probe past his denial of the facts necessary for asylum.” Id. He also alleged the officials “failed to apply the ‘correct standard’ to his claims—the ‘significant possibility’ standard—despite its repeated appearance in the records of their decisions.” Id.
The district court dismissed Thuraissigiam‘s petition, “holding that §§ 1252(a)(2) and (e)(2) and clear Ninth Circuit case law foreclosed review of the negative credible-fear determination that resulted in [his] expedited removal order.” Id. (citing Thuraissigiam v. DHS, 287 F. Supp. 3d 1077, 1081 (S.D. Cal. 2018), rev‘d, 917 F.3d 1097, 1119 (9th Cir. 2019), rev‘d, 140 S. Ct. at 1983). The district court also rejected Thuraissigiam‘s argument that the jurisdictional limitations of section 1252(e) violate the Suspension Clause. Id.
We reversed, holding that section 1252(e) violates the Suspension Clause. 917 F.3d at 1100 (“Although
The Supreme Court reversed. Noting that Thuraissigiam‘s requested relief “f[ell] outside the scope of the writ as it was understood when the Constitution was adopted,” the Court held that section 1252(e) does not violate the Suspension Clause. 140 S. Ct. at 1971 (citing Castro v. DHS, 835 F.3d 422, 450–51 (3d Cir. 2016) (Hardiman, J., concurring dubitante)).
The Court then rejected Thuraissigiam‘s argument that the IIRIRA “violates his right to due process by precluding judicial review of his allegedly flawed credible-fear proceeding.” Id. at 1981. It described this court‘s analysis of Thuraissigiam‘s due process argument as “contrary to more than a century” of Supreme Court precedent recognizing that “as to ‘foreigners who have nеver been naturalized, nor acquired any domicil or residence within the United States, nor even been admitted into the country pursuant to law,’ ‘the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law.‘” Id. at 1982 (quoting Nishimura Ekiu v. United States, 142 U.S. 651, 660 (1892)).
Thuraissigiam argued this rule did not apply to him “because he was not taken into custody the instant he attempted to enter the country (as would have been the case had he arrived at a lawful port of entry)” but rather “succeeded in making it 25 yards” into the United States. Id. The Supreme Court disаgreed, concluding that this argument “disregards the reason for our century-old rule regarding the due process rights of an alien seeking initial entry,” which rests on the following propositions:
“[T]he power to admit or exclude aliens is a sovereign prerogative“; the Constitution gives “the political department of the government” plenary authority to decide which aliens to admit; and a concomitant of that power is the power to set the procedures to be followed in determining whether an alien should be admitted.
Id. (alteration in original) (citations omitted).
The Court concluded that a noncitizen who, like Thuraissigiam, “is detained shortly after unlawful entry cannot be said to have ‘effected an entry‘” into the country and therefore “has only those rights regarding admission that Congress has provided by statute.” Id. at 1982–83 (quoting Zadvydas v. Davis, 533 U.S. 678, 693 (2001)). In Thuraissigiam‘s case, “Congress provided the right to a ‘determin[ation]’ whether he had ‘a significant possibility’ of ‘establish[ing] eligibility for asylum,’ and he was given that right.” Id. at 1983 (alterations in original) (quoting
Here, Thuraissigiam‘s conclusion that the Due Process Clause does not require review of how the agency determines whether a noncitizen subject to expedited removal is eligible for asylum precludes this court from reviewing Guerrier‘s petition, despite his raising a colorable constitutional claim. See Id. at 1983. With respect to a noncitizen‘s right to review of an expedited removal order, Congress has provided for a credible fear interview with an
Guerrier‘s attempts to distinguish Thuraissigiam from the instant action are unavailing. His principal argument is that the Supreme Court‘s opinion does not bind this court because Thuraissigiam filed a habeas petition and Guerrier did not. It is true that Guerrier appealed directly to this court from the expеdited removal order rather than filing a habeas petition in the district court. But this difference in the procedural posture does not alter our analysis here. In concluding that Thuraissigiam‘s due process rights were not violated, the Supreme Court emphasized that the due process rights of noncitizens who have not “effected an entry” into the country are coextensive with the statutory rights Congress provides. Id. at 1982–83 (quoting Zadvydas, 533 U.S. at 693). Bound by this precedent, we hold that Thuraissigiam abrogated any “colorable constitutional claims” exception to the limits
We have considered Guerrier‘s remaining arguments and find them to be without merit. Because no basis exists for this court‘s jurisdiction, we must dismiss the petition for review.
We lack jurisdiction to review Guerrier‘s challenge to his expedited removal proceedings. Accordingly, we dismiss the petition for review.
PETITION FOR REVIEW DISMISSED.