Raul MORALES-IZQUIERDO, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
No. 03-70674.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Dec. 13, 2005. Proceedings Stayed Jan. 5, 2006. Resubmitted June 22, 2006. Filed Feb. 6, 2007.
477 F.3d 1084
Peter D. Keisler, Assistant Attorney General, Civil Division; Jonathan F. Cohn, Deputy Assistant Attorney General; Donald E. Keener, Deputy Director, Office of Immigration Litigation; John Andre, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, Washington, D.C., for the respondent.
Trina A. Realmuto and Nadine K. Wettstein, American Immigration Law Foundation, Washington, D.C., as amici curiae in support of the petitioner.
Before MARY M. SCHROEDER, Chief Judge, HARRY PREGERSON, STEPHEN REINHARDT, ALEX KOZINSKI, PAMELA ANN RYMER, MICHAEL DALY HAWKINS, SIDNEY R. THOMAS, SUSAN P. GRABER, WILLIAM A. FLETCHER, RONALD M. GOULD and JAY S. BYBEE, Circuit Judges.
When an alien subject to removal leaves the country, the removal order is deemed to be executed. If the alien reenters the country illegally, the order may not be executed against him again unless it has been “reinstated” by an authorized official.1 Until 1997, removal orders could only be reinstated by immigration judges. That year, the Attorney General changed the applicable regulation to delegate this authority, in most cases, to immigration officers. We consider whether this change in regulation is valid.
I
Morales-Izquierdo, a native and citizen of Mexico, was arrested in 1994 for entering the United States without inspection. He was released and served with a mail-out order to show cause.2 Eventually, a removal hearing was scheduled, and Morales was notified via certified mail of the time and place of the hearing. When Morales failed to attend the hearing, he was ordered removed in absentia.3 Morales claims he never received notice of the hearing date, but the record shows that the notice was mailed to his address of record, and the Immigration and Naturalization Service (INS) received a return receipt bearing the signature “Raul Morales.”
A warrant of removal was issued, and the INS apprehended and removed Morales from the United States in 1998.4 He attempted to reenter illegally in January 2001—this time using a false border-crossing card. He was apprehended at the port of entry, and was expeditiously removed for misrepresenting a material fact in violation of the Immigration and Nationality Act (INA) § 212(a)(6)(C)(i),
Sometime between his 1998 and 2001 removals, Morales married a United States citizen. In March 2001, Morales’ wife filed an I-130 alien relative petition based on his marriage to a United States citizen. When Morales and his wife met with the INS in January 2003, an immigration officer served them with a denial of the I-130 petition and a notice of intent to reinstate Morales’ removal order in accordance with INA § 241(a)(5),
The case came before a three-judge panel, which held that the regulation authorizing immigration officers to issue reinstatement orders is invalid and Morales’ removal order could only be reinstated by an immigration judge. See Morales-Izquierdo v. Ashcroft, 388 F.3d 1299, 1305 (9th Cir. 2004). We took the case en banc. See Morales-Izquierdo v. Gonzales, 423 F.3d 1118 (9th Cir. 2005).
II
As noted, Morales cannot be removed again under the 1994 removal order unless and until it was reinstated. The order was reinstated by an immigration officer, who acted pursuant to
A. In determining whether
Here, two sections of the INA are potentially implicated. The first, INA § 240, titled “Removal proceedings,” requires that “[a]n immigration judge shall conduct proceedings for deciding the inadmissibility or deportability of an alien.” INA § 240(a)(1),
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.
INA § 241(a)(5),
Morales argues that Congress spoke clearly as to whether a hearing before an immigration judge is required for reinstating a prior removal order, and did so in INA § 240. While recognizing that reinstatement is mentioned nowhere in this section, Morales claims a reinstatement order is functionally a removal order because it has the effect of authorizing an alien‘s removal. In other words, reinstatement is simply a species of removal, and is thus governed by INA § 240, which calls for a hearing before an immigration judge. In support of his argument, Morales points out that when Congress has intended to exempt certain removal proceedings from the INA § 240 hearing requirement, it has done so explicitly.9 Reinstatement is not among those proceedings explicitly exempted.
Morales’ argument that the failure to exempt reinstatement from the requirement that a hearing be held before an immigration judge, particularly when similar provisions of the same statute contain explicit exemptions, carries some force. But such failure hardly amounts to the kind of unambiguous expression of congressional intent that would remove the agency‘s discretion at Chevron step one. Far more telling is the fact that reinstatement and removal are placed in different sections, which “logically can be understood as indicating a congressional intention to treat reinstatement determinations differently from first-instance determinations of removability.” Lattab, 384 F.3d at 18 (citing Alexander v. Sandoval, 532 U.S. 275, 288-91 (2001));
A closer look at the texts of the two sections confirms that Congress intended reinstatement to be a different and far more summary procedure than removal. Under INA § 240, first-instance removal proceedings involve a broad inquiry. To order an individual removed, the immigration judge must make two determinations: (1) whether the individual is removable from the United States; and, if so, (2) whether the individual is otherwise eligible for relief from removal. See INA § 240,
The scope of a reinstatement inquiry under INA § 241 is much narrower, and can be performed like any other ministerial enforcement action. The only question is whether the alien has illegally reentered after having left the country while subject to a removal order. As the Eleventh Circuit pointed out, INA § 241 reinstatement—unlike INA § 240 first-instance removal—“deprives aliens of any relief, reopening, or review at the reinstatement stage.” De Sandoval, 440 F.3d at 1281. By barring all relief, Congress eliminated the second and much more difficult removal inquiry. The First and Eighth Circuits similarly found that “the elimination of any exogenous defense to reinstatement significantly narrows the range of issues to be adjudicated, thereby limiting the value of additional procedures.” Lattab, 384 F.3d at 20; see also Alvarez-Portillo v. Ashcroft, 280 F.3d 858, 867 (8th Cir. 2002).
Moreover, the texts of the two sections differ in their delegation of discretion: INA § 240 expressly requires that an immigration judge conduct removal proceedings, whereas INA § 241 authorizes the Attorney General to reinstate removal orders. “This distinction suggests Congress knew how to mandate a hearing before an immigration judge, but chose not to do so in the context of reinstatement orders.” De Sandoval, 440 F.3d at 1281.
Given the different layout of the two sections and their very different scope, we conclude that Congress did not consider removal and reinstatement to be equivalent. Certainly, nothing in the text of the INA, or the statutory scheme, supports Morales’ argument that reinstatement is merely a species of removal. Nor does anything in the INA express an unequivocal congressional intent that reinstatement proceedings be conducted before an immigration judge. If anything, the statutory scheme supports the opposite conclusion. See Tilley, 144 Fed. Appx. at 540 (“[T]he regulations promulgated in
B. While this case could probably be decided under the first Chevron inquiry, all other circuits that have published opinions on this matter decided the issue at Chevron step two. In an abundance of caution, we therefore proceed to the second step, which requires us to ask “whether the agency‘s answer is based on a permissible construction of the statute.” Chevron, 467 U.S. at 843. In making this determination, we “need not conclude that the agency construction was the only one it permissibly could have adopted ..., or even the reading the court would have reached if the question initially had arisen in a judicial proceeding.” Id. at 843 n. 11. Rather, “Congress, when it left ambiguity in a statute meant for implementation by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.” Nat‘l Cable & Telecomms. Ass‘n v. Brand X Internet Servs., 545 U.S. 967, 125 S. Ct. 2688, 2700, 162 L. Ed. 2d 820 (2005) (quoting Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 740-41 (1996)).
Deference to an agency‘s interpretation “is especially appropriate in the immigration context where officials ‘exercise especially sensitive political functions that implicate questions of foreign relations.‘” INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (quoting INS v. Abudu, 485 U.S. 94, 110 (1988)). For these reasons, the First, Eighth and Eleventh Circuits had “little difficulty in concluding that the government‘s interpretation satisfies” the second step of Chevron. Lattab, 384 F.3d at 19-20; see also De Sandoval, 440 F.3d at 1283; Ochoa-Carrillo, 437 F.3d at 846. We find no fault with this conclusion.
Morales raises two issues, however, that our sister circuits did not consider. First, he invokes the doctrine of constitutional avoidance, asking us to construe the statute so as to avoid serious constitutional issues. Morales relies on Clark v. Martinez, 543 U.S. 371, 125 S. Ct. 716, 160 L. Ed. 2d 734 (2005):
[W]hen deciding which of two plausible statutory constructions to adopt, a court must consider the necessary consequences of its choice. If one of them would raise a multitude of constitutional problems, the other should prevail—whether or not those constitutional problems pertain to the particular litigant before the Court.
Id. at 380-81; see also INS v. St. Cyr, 533 U.S. 289, 299-300 (2001). According to Morales, construing the statute so as to require that reinstatement hearings be held before an immigration judge would avoid constitutional problems that
The problem with Morales’ argument is that we are not deciding between two plausible statutory constructions; we are evaluating an agency‘s interpretation of a statute under Chevron. At step two of this inquiry, our function is “not simply [to] impose [our] own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, ... the question for the court is whether the agency‘s answer is based on a permissible construction of the statute.” Chevron, 467 U.S. at 843. When Congress has explicitly or implicitly left a gap for an agency to fill, and the agency has filled it, we have no authority to re-construe the statute, even to avoid potential constitutional problems; we can only decide whether the agency‘s interpretation reflects a plausible reading of the statutory text. Clark v. Martinez, and the constitutional avoidance doctrine it embodies, plays no role in the second Chevron inquiry.
Second, Morales argues that the Attorney General impermissibly eliminated the hearing requirement in 1997, when it had been a mainstay of the reinstatement process during the previous four decades. Compare
Here, we concluded at Chevron step one that Congress has not expressed a clear preference that reinstatement hearings be held before immigration judges; if anything, the INA‘s statutory scheme supports the opposite conclusion. Nor has Morales pointed to anything in the legislative history that discloses congressional acquiescence in the agency‘s past practice—and certainly not the requisite “overwhelming evidence.” A finding of congressional acquiescence must be reserved for those rare instances where it is very clear that Congress has considered and approved of an agency‘s practice, lest the agency be improperly deprived of the very flexibility Congress intended to delegate. Such is not the case here.
We also understand Morales to be arguing that the agency‘s change in policy was impermissibly inconsistent with its past practice. An “[u]nexplained inconsistency is ... a reason for holding an interpretation to be an arbitrary and capricious change from agency practice under the Administrative Procedure Act.” Brand X, 125 S. Ct. at 2699 (emphasis added). This rule, too, is reserved for rare instances, such as when an agency provides no explanation at all for a change in policy, or when its explanation is so unclear or con-
The regulatory change here was adequately explained. The change in the reinstatement regulation was part of a major overhaul of the INA‘s implementing regulations, designed “to implement the provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).” Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed. Reg. 444, 444 (proposed Jan. 3, 1997) (codified in scattered parts of
The net effect of these statutory changes is two-fold. First, IIRIRA brings vastly more aliens within the sweep of the reinstatement provision, essentially making every removed alien subject to reinstatement if he returns to the United States without the Attorney General‘s permission. Second, the decision to reinstate is now far more mechanical: There need be no determination whether the alien falls
We thus conclude that the regulation is a valid interpretation of the INA.
III
We now turn to Morales’ argument that the regulation, if authorized under Chevron, is nevertheless invalid because it violates various constitutional guarantees.
A. Morales first argues that the regulation violates due process because it assigns the reinstatement determination to an immigration officer—an official not qualified to resolve disputed questions as to the factual predicates for reinstatement. But reinstatement only requires proof that (1) petitioner is an alien, (2) who was subject to a prior removal order, and (3) who illegally reentered the United States. INA § 241(a)(5),
We note at the outset that the regulation provides significant procedural safeguards against erroneous reinstatements. First, the immigration officer must verify the identity of the alien. “In disputed cases, verification of identity shall be accomplished by a comparison of fingerprints.”
We need not determine whether these procedures are adequate as to all aliens in all cases because Morales does not dispute that he satisfies the statutory predicates for reinstatement. Rather, he argues that his 1994 in absentia removal order is defective because he never got notice of the removal hearing, his 1998 removal was actually a voluntary departure and his marriage to a U.S. citizen entitled him to adjustment of status. But the reinstatement statute specifically precludes Morales from seeking to reopen the previous removal order based on defective service or any other grounds. INA § 241(a)(5),
We are satisfied, moreover, that the regulation provides sufficient procedural safeguards to withstand a facial challenge for patent procedural insufficiency. Given the narrow and mechanical determinations immigration officers must make and the procedural safeguards provided by
While the regulation does not offend due process, we leave open the possibility that individual petitioners may raise procedural defects in their particular cases. Morales himself raises several such challenges, and to these we now turn.
B. Morales first claims he had no meaningful opportunity to review his file and respond to adverse evidence. But Morales points to no material errors in his file; nor does he explain what evidence he would have presented, had he been given an opportunity to do so.
Second, he argues he should have had an opportunity to obtain assistance of counsel, but there is no Sixth Amendment right to counsel in any civil removal proceeding. Lara-Torres v. Ashcroft, 383 F.3d 968, 974 (9th Cir. 2004). Any such right is statutory, and the INA extends the right to representation by counsel only to aliens in proceedings before an immigration judge. Similarly, the Administrative Procedure Act provides a right to counsel “in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing.”
Morales’ third argument, that the immigration officer who reinstated his removal order suffered from institutional bias, is foreclosed by Marcello v. Bonds, 349 U.S. 302 (1955): “Th[is] contention [of bias] is without substance when considered against the long-standing practice in deportation proceedings, judicially approved in numerous decisions in the federal courts, and against the special considerations applicable to deportation which the Congress may take into account in exercising its particularly broad discretion in immigration matters.” Id. at 311; see also United States v. Garcia-Martinez, 228 F.3d 956, 960-63 (9th Cir. 2000).
Finally, Morales argues that he was denied due process because he was not notified of the availability of judicial review. We have never required such notice in the civil immigration context, and we find no reason to require it in the reinstatement context—where an alien‘s rights and remedies are severely limited. See Part III.C infra. In any event, petitioner obviously got notice because he “filed a timely petition for judicial review to this court. Again, no prejudice has been shown.” Ochoa-Carrillo, 437 F.3d at 848.
To the extent we so held in Arreola-Arreola, we revisit that decision here and reverse field: Reinstatement of a prior removal order—regardless of the process afforded in the underlying order—does not offend due process because reinstatement of a prior order does not change the alien‘s rights or remedies. The only effect of the reinstatement order is to cause Morales’ removal, thus denying him any benefits from his latest violation of U.S. law, committed when he reentered the United States without the Attorney General‘s permission in contravention of INA § 212(a)(9),
In short, reinstatement of the removal order leaves Morales in the same position as on the date of the original removal. The Supreme Court noted this very point in Fernandez-Vargas:
While the [reinstatement] law looks back to a past act in its application to “an alien [who] has reentered ... illegally,”
8 U.S.C. § 1231(a)(5) , the provision does not penalize an alien for reentry (criminal and civil penalties do that); it establishes a process to remove him “under the prior order at any time after the reentry.” Ibid. ... [T]he statute applies to stop an indefinitely continuing violation that the alien himself could end at any time by voluntarily leaving the country.
Fernandez-Vargas, 548 U.S. at 44 (second alteration in original). 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. Nor is the government required to expend vast resources on extraneous procedures before reinstating a removal order that has already been finalized and executed.
Or, to put it differently, an alien who respects our laws and remains abroad after he has been removed should have no fewer opportunities to challenge his removal order than one who unlawfully reenters the country despite our government‘s
IV
We conclude that a previously removed alien who reenters the country illegally is not entitled to a hearing before an immigration judge to determine whether to reinstate a prior removal order. The reinstatement statute and its implementing regulation comport with due process, and
Morales has shown no violation of due process in the conduct of his reinstatement proceeding. To the extent genuine issues of material fact exist with respect to his underlying removal order, this “prior order ... is not subject to being reopened or reviewed” during the course of the reinstatement process. INA § 241(a)(5),
PETITION DENIED.
THOMAS, Circuit Judge, with whom PREGERSON, REINHARDT, and W. FLETCHER, Circuit Judges, join, dissenting:
On January 15, 2003, Raul Morales-Izquierdo and his United States citizen wife, Patricia Morales, attended a meeting at the INS‘s Tacoma, Washington office. The Moraleses expected to discuss the I-130 alien relative petition that Patricia had filed on March 1, 2001, to adjust her husband‘s status to that of a legal permanent resident. Instead, the INS served on the couple both a denial of the petition for adjustment of status and a notice of intent to reinstate a 1994 deportation order against Raul Morales under INA § 241(a)(5).
Morales has consistently and emphatically maintained that the 1994 deportation order was invalid because he was never given notice of the 1994 hearing at which he was ordered deported in absentia. In a sworn statement, Morales claimed never to have received the notice that was sent to his ex-girlfriend‘s house, explaining that someone else had signed to indicate receipt of the notice. He has never been granted a hearing at which he could present his case; the majority opinion assures that he never will be.
This result would have been impossible under the regulations that governed reinstatement proceedings for nearly forty-five years. Under the former
All of that changed in 1997, when the Attorney General made a complete course reversal. Under the new regulation, aliens are to be removed from the country without a hearing or an opportunity to contest the charges, via reinstatement by a low-level Department of Homeland Security employee who serves as both prosecutor and judge.
The central question in this case is whether the Immigration and Nationality Act (“INA“) permits the Attorney General to make these changes, eliminating longstanding procedural protections. Because the INA unambiguously prohibits the Attorney General from creating alternative procedures for any inadmissibility or deportability determinations absent explicit congressional permission and because the creation of less-protective procedural mechanisms raises serious constitutional questions, I respectfully dissent from the majority‘s decision to uphold the Attorney General‘s regulation.1
I
As the majority and I agree, the appropriate framework for assessing the validity of
In determining congressional intent, we not only examine the precise statutory section in question but also analyze the provision in the context of the governing statute as a whole, presuming a congressional intent to create a “symmetrical and coherent regulatory scheme.” Id. at 133 (quoting Gustafson v. Alloyd Co., 513 U.S. 561, 569 (1995)). We must also “be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of [significant] economic and political magnitude to an administrative agency.” Id. If, after conducting such an analysis, we conclude that Congress has not addressed the issue, we “must respect the agency‘s construction of the statute so long as it is permissible.” Id. at 132 (citing INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999)).
Ultimately, “the judiciary is the final authority” in interpreting statutes, and courts must employ all “traditional tools of statutory construction” under Chevron step one to ascertain whether Congress‘s intent is “clear.” Chevron, 467 U.S. at 843 n. 9. In this case, the text and structure of the INA are clear; the statute unambiguously prohibits the Attorney General‘s interpretation. But even if the statute were ambiguous, the Attorney General‘s interpretation would be precluded by the canon of constitutional avoidance—unquestionably a “traditional tool of statutory construction” to be used at Chevron step one—pursuant to which we must presume that Congress did not intend to permit any interpretation that, like the Attorney General‘s, raises serious constitutional questions.
The intent of Congress could hardly be clearer. The text and structure of the INA unambiguously require that inadmissibility and deportability determinations be made by an immigration judge pursuant to the procedural protections outlined in INA § 240. Section 240 declares that the procedural mechanism it creates “shall be the sole and exclusive procedure for determining” an alien‘s removability, unless Congress has “specified” an alternative procedure. INA § 240(a)(3);
Although the statute‘s plain language should settle the question, it is worth noting that this construction is buttressed by the INA‘s inclusion of several provisions that do explicitly create or authorize alternative procedural mechanisms, demonstrating that Congress knew how to express an intention to deviate from § 240 and failed to do so in § 241(a)(5). See, e.g., INA § 235(b)(1) (expedited removal for arriving and certain other aliens); INA § 235(c) (expedited removal for terrorists); INA § 238 (administrative removal for nonpermanent residents convicted of an aggravated felony). The existence of these explicit provisions has considerable significance in discerning Congress‘s intent. See Valderrama-Fonseca v. INS, 116 F.3d 853, 856 & n. 6 (9th Cir. 1997) (noting in relation to IIRIRA § 348 that “it is apparent that Congress knew how to make provisions of IIRIRA applicable to pending proceedings when it wanted to“).
In short, § 240 requires an explicit exemption before expedited procedures may be used, and § 241(a)(5) contains no such exemption. Thus, because
Despite these unambiguous statutory requirements, the majority concludes that reinstatement proceedings need not follow § 240 strictures. The majority holds that the reinstatement provision authorizes the Attorney General‘s less-protective procedural mechanism just by implying a preference for shorter proceedings. But this analysis violates the very statute it purports to interpret. The INA does not tolerate implied authorizations; it requires Congress to “specify” an intention to deviate from § 240 guarantees. INA § 240(a)(3) (“Unless otherwise specified in this Act, a proceeding under this section shall be the sole and exclusive procedure” for removal.) (emphasis added).
The majority, of course, does not rest entirely on its assertion of implied repeal; it also argues that reinstatement proceedings are not “removal proceedings” and that they therefore do not fall within the ambit of § 240. However, reading the reinstatement provision both on its face and in its context, “with a view to [its] place in the overall statutory scheme,” Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 809 (1989), it is evident that § 241(a)(5) is not an alternative to § 240; rather, a § 241(a)(5) reinstatement order may issue
Importantly, § 212(a)(9)(C)(i) also specifically anticipates reentry after a formal removal order, meaning that the provision covers exactly the same group of aliens that the reinstatement provision covers. It is therefore simply not true that “reinstateable” aliens constitute a separate category from “removable” aliens. The so-called “first-instance” removal provisions, namely §§ 240 and 212, expressly cover the same aliens that the reinstatement provision covers.
This dual coverage need not render either provision surplusage nor need it imply that an alien subject to reinstatement is entitled to precisely the same rights as an alien facing removal for the first time. As many courts have made clear, the reinstatement provision strips illegally reentering aliens of discrete rights that are granted to first time removable aliens, including the rights to “relief, reopening, [and] review.” De Sandoval v. U.S. Att‘y Gen., 440 F.3d 1276, 1281 (11th Cir. 2006). The majority is also correct to note that § 241(a)(5) narrows the substantive inquiry that must be made prior to determining the alien‘s status. Additionally, the reinstatement provision creates a new kind of order to be entered at the end of a § 240 proceeding: an immediately-executing reinstatement order. The reinstatement provision, therefore, has real effects on the rights of reentering aliens and on the consequences of a reinstatement determination. But it does not—and cannot be read to—authorize abrogation of the procedural guarantees mandated by § 240. The rights-stripping provisions in § 241(a)(5) do not conflict with any § 240 procedures; the reinstatement provision can be given full effect without undermining § 240 exclusivity.
In short, the only way to give effect to both §§ 240 and 241(a)(5), especially taking into consideration the express inclusion of reentering aliens in the category of “removable” aliens, is to require that a reinstatement order issue only after a full § 240 hearing before an immigration judge. See Bowsher v. Merck & Co., Inc., 460 U.S. 824, 833 (1983) (restating and reaffirming “the settled principle of statutory construction that we must give effect, if possi-
The majority finds additional justification for reading § 241(a)(5) as authorizing a deviation from § 240 requirements in the fact that the reinstatement provision mentions the Attorney General rather than immigration judges, allegedly indicating a differential delegation of discretion. However, the Attorney General is merely a titular decision-maker, an example of statutory synecdoche, using the head of the Department of Justice to refer to all of its employees. Countless provisions of the INA refer to determinations of “the Attorney General” even when those determinations will actually be made by lower-level employees and even when those determinations must actually be made by immigration judges pursuant to § 240 procedures. For example, the statutory provision outlining grounds of inadmissibility, INA § 212, contains several references to findings of the Attorney General even though § 240 unquestionably requires that immigration judges make inadmissibility determinations. See, e.g., INA § 212(a)(2)(C) (deeming inadmissible any alien whom “the Attorney General knows or has reason to believe” is a drug trafficker or a drug trafficker‘s spouse); INA § 212(a)(2)(H)(i) (any alien whom “the Attorney General knows or has reason to believe” is a human trafficker); § 212(a)(2)(I) (any alien whom “the Attorney General knows, or has reason to believe” is a money launderer); § 212(a)(3)(A) (any alien whom “the Attorney General knows, or has reasonable ground to believe, seeks to enter the United States” as a spy); § 212(a)(3)(B)(i)(II) (any alien whom “the Attorney General knows, or has reasonable ground to
The majority additionally claims that the mention of immigration judges in § 240 “suggests Congress knew how to mandate a hearing before an immigration judge, but chose not to do so in the context of reinstatement orders.” Maj. Op. at 697 (quoting De Sandoval, 440 F.3d at 1281). This argument begs the question. The point is that Congress did not believe itself to be mandating or authorizing any kind of hearing whatsoever; section 241(a)(5) is a substantive provision that leaves § 240 hearing requirements entirely intact.
Although the majority is right to assert that § 241(a)(5) indicates a desire to shorten proceedings for illegally reentering aliens, it is wrong to conclude that the reinstatement provision authorizes a deviation from § 240 procedural guarantees. Section 241(a)(5) streamlines reinstatement proceedings by stripping reentering aliens of a discrete set of rights, not by authorizing an expedited procedural mechanism. Considering the text of the reinstatement provision and its context in the statutory scheme, it is clear that § 241(a)(5) authorizes reinstatement orders to issue only after an immigration judge makes a § 240 determination that the alien is “removable.”
In sum, Congress has expressed its unambiguous intent that the procedural mechanisms it created in § 240 “shall be
III
Even if the text and structure of the INA were sufficiently ambiguous to leave some discretion to the Attorney General, the canon of constitutional avoidance would preclude the interpretation that the Attorney General chose.
A
The avoidance canon instructs courts to reject those “plausible statutory constructions” that “would raise a multitude of constitutional problems,” Clark v. Martinez, 543 U.S. 371, 380-81 (2005), as long as an alternative construction exists that is “fairly possible” and less troubling, Crowell v. Benson, 285 U.S. 22, 62 (1932). The canon rests not only on courts’ desire “to avoid the decision of constitutional questions” but also on a “reasonable presumption that Congress did not intend the alternative which raises constitutional doubts.” Clark, 543 U.S. at 381. Avoidance, then, is a “means of giving effect to congressional intent,” id. at 381-82, resting on an assumption that, between two plausible statutory constructions, Congress meant the one that does not approach the boundaries of “constitutionally protected liberties,” DeBartolo, 485 U.S. at 575. In short, the avoidance canon rests on a judicial presumption that Congress always intends to steer clear of constitutional boundaries.
For purposes of this case, two important conclusions flow from the avoidance canon‘s rationales: first, the canon is highly relevant at Chevron step one, and second, the canon does not ultimately depend on the merits of implicated constitutional claims.
Because the avoidance canon centers on a presumption about congressional intent, it certainly pertains to the step one determination of whether Congress intended to preclude the agency‘s interpretation. See Brown & Williamson, 529 U.S. at 126 (denying deference at step one, not because the statute was entirely clear, but because “Congress ha[d] clearly precluded” the agency‘s construction); MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U.S. 218, 229 (1994) (holding that an agency‘s interpretation should be denied deference at step one, even in the face of some ambiguity, if the proffered interpretation “goes beyond the meaning that the statute can bear“); Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 574 (1988) (holding that an interpretation should be denied deference at step one if it is “clearly contrary to the intent of Congress“); INS v. Cardoza-Fonseca, 480 U.S. 421, 448 n. 31 (1987) (denying deference at step one, even while noting that the provision contained significant ambiguities, on the ground that the statute clearly precluded the agency‘s interpretation).
The avoidance canon, thus, is properly applied at step one of the Chevron analysis. While the majority may be correct that the avoidance canon cannot be used to render an agency‘s interpretation “unreasonable” at Chevron step two, the canon is unquestionably a “traditional tool of statutory interpretation” that may and should
The second conclusion to flow from the avoidance canon‘s rationales is that its application does not depend on this or any court‘s conclusions as to the merits of implicated constitutional claims. Clark, 543 U.S. at 381 (“The canon is not a method of adjudicating constitutional questions by other means.“) (citing Adrian Vermeule, Saving Constructions, 85 Geo. L.J. 1945, 1960–61 (1997) (listing cases in which the Supreme Court used the canon to avoid a constitutional question only later to decide that the avoided application was not unconstitutional)). Even if every constitutional challenge to arise under the Attorney General‘s regulation were ultimately decided against the alien, the regulation should be rejected under the avoidance canon if it approaches “the constitutional danger zone” without a clear statement from Congress that it intended to do so. Vermeule, 85 Geo. L.J. at 1960.
B
That the reinstatement regulation does, in fact, approach the “constitutional danger zone” is beyond cavil. We have noted specifically on more than one occasion that
And several of our sister circuits have expressed similar doubts as to the sufficiency of process afforded. See Lattab, 384 F.3d at 21 n. 6 (noting the seriousness of the constitutional claim given that the regulation “offers virtually no procedural protections“); United States v. Charleswell, 456 F.3d 347, 356 n. 10 (3d Cir. 2006) (noting that constitutional doubts relating to the regulation “continue to cause a significant amount of consternation“); Bejjani v. INS, 271 F.3d 670, 687 (6th Cir. 2002) (construing the regulation as having no retroactive effect in part “to avoid a constitutional question“), abrogated on other grounds by Fernandez-Vargas, 548 U.S. 30; Gomez-Chavez v. Perryman, 308 F.3d 796, 802 (7th Cir. 2002) (reserving the question of “what kind of procedures” would be “necessary” for an alien who challenges the factual basis for reinstatement); Alvarez-Portillo v. Ashcroft, 280 F.3d 858, 867 (8th Cir. 2002) (noting that additional procedures might be due for an alien who challenges the applicability of reinstatement), abrogated on other grounds by Fernandez-Vargas, 548 U.S. 30.
When we examine the reinstatement procedures more closely, the constitutional concerns expressed by our court and others become apparent. It is well-settled
1
First, purely on a facial analysis, the reinstatement process itself approaches the “constitutional danger zone” because it does not provide any opportunity for the alien to challenge the legality of a prior removal order. The inquiry is confined to three determinations: (1) the identity of the alien, (2) that the alien has previously been deported, and (3) that the alien illegally reentered the United States.
Even as to the three factual determinations to be made, the Attorney General‘s reinstatement procedure affords insufficient procedural protections, clearly approaching—if not breaching—the constitutional danger zone. The reinstatement procedure does not provide adequate means to contest the predicates to reinstatement. As we observed in Castro-Cortez, “an alien cannot receive a full and fair hearing unless he has the right to place information into the administrative record.” Castro-Cortez, 239 F.3d at 1049. Under the regulation, however, the alien is afforded the ability only to make “a written or oral statement contesting the determination” to the officer who has already decided to reinstate the order.
The lack of due process in practice is illustrated by the reinstatement cases that have found their way to the courts of appeal. In the typical reinstatement case considered by our circuit and our sister circuits, the alien has married a United States citizen and makes an appointment with the agency to discuss adjustment of status or an extension of a previously granted work authorization. During the discussion, the officer serves a Notice to Reinstate Prior Order and asks the alien to fill out the form, which includes a checkbox to indicate whether the alien wishes to make a statement. If the box is checked “no,” that is the end of the matter, and the reinstatement is effected without further ado. If the box is checked “yes,” either the alien writes out a statement, or the officer asks questions and writes down the answers. Then the reinstatement is effected, and the alien usually is immediately taken into custody.3 This procedure can-
In short, the regulatory procedure is so streamlined that it deprives reentering aliens of any meaningful opportunity to raise potentially viable legal, constitutional, or factual challenges to their removability. Based on these observations, it is clear that the reinstatement process implemented by
2
When one specifically examines whether due process has been afforded to Morales in this case, one can only conclude that the procedures as applied to him place him within the constitutional danger zone.
First, the due process problems inherent in the reinstatement process affected Morales. He appeared at his interview for adjustment of status. Without prior notice, he was presented with a Notice of Intent to Reinstate Prior Order. He was not afforded a lawyer. Although he stated that he did not read or write English and needed to have things explained in Spanish
Second, because he was deported in absentia, Morales has never seen an immigration judge at all. He never had a full hearing on his prior deportation charges. Therefore, his situation is different from that involved in Arreola–Arreola, in which we concluded that the alien had received due process in his prior deportation hearing.
If Morales’ allegations are true—that he never received notice of the deportation hearing at which he was deported in absentia—then there can be no question that he has been denied a full and fair hearing of his claims; he was, in fact, denied any hearing at all. See Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000) (holding that an asylum petitioner was denied a full and fair hearing and a reasonable opportunity to present evidence on his behalf where the IJ “acted as a partisan adjudicator” during petitioner‘s hearing). Thus, the procedures used in the underlying deportation hearing independently place Morales within the constitutional danger zone.4
3
Because the reinstatement procedures fall within the constitutional danger zone, both facially and as applied to Morales, the doctrine of constitutional avoidance requires a presumption that Congress intended to afford Morales a full § 240 hearing before an immigration judge. This statutory construction, which is consistent with the plain words of § 240 and with the overall structure of the INA, necessarily means that the reinstatement regulation is ultra vires to the statute and must be invalidated.
C
Rather than reaching the question of whether there has been a deprivation of due process, the majority opinion contends that any such violation can be addressed and remedied by the court on a petition for habeas corpus, filed by the alien following removal. This contention, however, cannot be squared with the Real ID Act of 2005‘s limitation on the availability of habeas re-
Section 106(a) of the Real ID Act, Pub. L. No. 109-13 (May 11, 2005), amending
Notwithstanding any other provision of law, ... or any other habeas corpus provision, ... a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of [the INA].
“The [Real ID Act] eliminated habeas jurisdiction ... over final orders of deportation, exclusion, or removal.” Alvarez-Barajas v. Gonzales, 418 F.3d 1050, 1052 (9th Cir. 2005). Without § 240 procedural protections during the reinstatement proceeding, this lack of post-removal habeas review raises serious Suspension Clause concerns. The Attorney General‘s regulation, thus, approaches a second and independent “constitutional danger zone” by denying reinstateable aliens any constitutionally sufficient access to relief from detention and deportation.
When there are essential disputed factual issues, the only constitutionally adequate remedy is a “full and fair hearing,” which includes “a reasonable opportunity [for the alien] to present evidence on his behalf.” Ibarra-Flores v. Gonzales, 439 F.3d 614, 620 (9th Cir. 2006) (internal quotation marks omitted). Because the Real ID Act vests exclusive habeas corpus jurisdiction over final orders of removal in the courts of appeal, the statute necessarily deprives the alien of a contested evidentiary hearing with a resolution that is later subject to appellate review based on a complete record. Courts of appeal are not trial courts. Tippitt v. Reliance Standard Life Ins. Co., 457 F.3d 1227, 1237 (11th Cir. 2006) (“[I]t is not the role of appellate courts to make findings of fact.“); see also Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714 (1986) (noting that it was improper for a court of appeals to make “factual findings on its own“). In short, under the Real ID Act, evidentiary hearings in habeas corpus review of final orders of removal are eliminated. Thus, without a hearing before an IJ, Morales will have no opportunity to litigate the contested questions of fact. Even if habeas review were afforded in the appellate courts, it would not be constitutionally sufficient because it would not include an evidentiary hearing at which Morales could participate.
In addition, even if a full post-removal evidentiary hearing were permitted, Morales would be unable to attend and present live testimony without committing the criminal act of reentering the United States after removal, in violation
In short, the theoretical existence of a post-removal habeas corpus remedy does not provide an opportunity for a full and fair hearing of Morales‘s claims before a neutral fact-finder. Morales will never have a hearing on his claims. The only
D
Given all of these considerations, even if the statutory language were susceptible to another interpretation, the canon of constitutional avoidance would require us to construe the statute to avoid these many constitutional concerns, interpreting it instead as requiring that § 240 procedures be applicable to reinstatement proceedings. That construction is at least “fairly possible,” Crowell, 285 U.S. at 62, even if not textually and structurally required, and that construction would avoid the plethora of due process and Suspension Clause problems that are inherent in the Attorney General‘s regulation.
IV
Congress could hardly have been more clear. The INA unambiguously requires that inadmissibility and deportability determinations be made by an immigration judge pursuant to the procedural protections outlined in INA § 240. Lest there be any doubt, application of the traditional rules of statutory construction, including the canon of constitutional avoidance, dictate the same conclusion; we should not lightly assume that Congress intended to authorize the Attorney General‘s abrogation of so many aliens’ procedural rights. The Attorney General‘s action in stripping away the procedural protections that had been in place for nearly forty-five years is in direct conflict with the statute and cannot stand.
For those reasons, I respectfully dissent.
SIDNEY R. THOMAS
UNITED STATES CIRCUIT JUDGE