In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3825
F AISAL K HAN,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition To Review an Order of the
Department of Homeland Security.
No. A089 280 927
No. 09-3882
M ONA K HAN,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition To Review an Order of the
Department of Homeland Security.
No. A089 280 928
S UBMITTED JANUARY 6, 2010—D ECIDED JUNE 11, 2010
2 Nos. 09-3825 & 09-3882
Before E ASTERBROOK, Chief Judge, and W OOD and
E VANS, Circuit Judges.
W OOD , Circuit Judge. Petitioner Faisal Khan and his
sister Mona Khan, citizens of Pakistan, obtained B1/B2 non-
immigrant visitor’s visas to travel to the United States,
purportedly for a two-month visit with their brother
and his wife, whom they had not yet met. Immediately
upon the arrival of the Khans and their parents at Chi-
cago’s O’Hare Airport, Faisal and Mona were detained
by the Department of Homeland Security. (The status
of the parents is not before us.) Faisal and Mona were
placed in expedited removal proceedings and ordered
to return immediately to Pakistan. Each filed a petition
for review from the removal order and a motion to
stay removal pending resolution of the petition. We
conclude that the government’s motions to dismiss the
petitions for review for lack of jurisdiction must be
granted.
At the time counsel for the petitioners filed the petition
for review from Faisal’s removal order and the motion
to stay his removal, counsel had almost no information
regarding the removal proceedings, because neither
counsel nor Faisal’s family members had been permitted
to speak to him. Counsel had been unable to obtain even
a copy of the removal order. According to the informa-
tion counsel had received, Faisal was scheduled to be
removed on a flight that evening. With little information
about why Faisal, who had a valid passport and a
valid visitor’s visa, was being removed, we ordered a
temporary stay of his removal and ordered the govern-
Nos. 09-3825 & 09-3882 3
ment to respond. One week later, Mona, who had been
paroled into the United States for a total of seven days
to obtain medical care, was ordered removed, and she
filed a petition for review and motion to stay her im-
minent removal. We again temporarily stayed her
removal in order to obtain a response and additional
information.
The government has responded to the motions to stay
removal and has furnished the expedited removal orders
and related documents. These materials explain why the
Khans were not admitted at O’Hare, even though the
government concedes that they had valid, unexpired
passports and valid, unexpired B1/B2 non-immigrant
visitor’s visas. At O’Hare, a United States Customs and
Border Protection (“CBP”) investigating officer determined
that the Khans actually intended to immigrate to the
United States from Pakistan rather than temporarily
visit, and they lacked the necessary documentation
to immigrate. A different visa is needed for an alien
who intends to immigrate than for an alien who has a
residence in a foreign country that he has no intention
of abandoning and who is visiting the United
States temporarily for business or pleasure. 8 U.S.C.
§ 1101(a)(15)(B). Based on the examination at the
border, CBP charged the Khans as inadmissible because
they were attempting to immigrate without immigrant
visas, in violation of 8 U.S.C. § 1182(a)(7)(A)(i)(I), and
it processed them for expedited removal under
8 U.S.C. § 1225(b)(1)(A)(i). In short order, they were
served with a Notice and Order of Expedited Removal
and found removable as charged; the order was then
approved by a CBP Chief. See 8 C.F.R. § 1235.3(b)(2), (7).
4 Nos. 09-3825 & 09-3882
The government has called our attention to a number
of factors that support its determination that Faisal in-
tended to immigrate. Although we lack jurisdiction to
review the merits of the question whether the CBP
officer correctly initiated expedited removal proceedings,
we note some of the contested factors only to highlight
a few of the concerns with the expedited removal proce-
dure that the petitioners are attempting to raise. Perhaps
what initially aroused the CBP officer’s suspicions was
Faisal’s return airline ticket for August 2010, seven
months later than it should have been under his
stated travel plans for a two-month visit. Faisal also
had $7,800 in cash, his resume translated into
English, and blank letterhead from his current employer
in Pakistan. The government has also given us a 5-page
transcript from Faisal’s interview with the CBP officer.
It believes that the transcript supports the conclusion
that Faisal intended to immigrate to the United States.
We are not so sure. Some of the answers are incon-
sistent and could support Faisal’s argument that he was
confused and needed a translator. Faisal also protests that
the interview lasted for hours and the 5-page document
could not possibly be a full transcript. He maintains that
the questions and answers the government has selected
were taken out of context. He answered “yes” to the
question whether he “planned on seeking employment
during this entry” but only one page earlier he explained
that he brought his documents because “I thought that
it would prove I am going back to my job in Pakistan.”
Faisal also said, “We are coming just to visit, but if the
opportunity came for me to get a job then we would stay.”
Nos. 09-3825 & 09-3882 5
Toward the end of the questioning, Faisal answered “yes”
to the question whether he had been untruthful, and
when asked why he had been untruthful, Faisal
responded “I did a big stupid thing.” The officer then
asked three separate questions whether he, his parents,
and his sister were “immigrating to the United States on
their B1/B2 visas, and he said “yes” to each. But when
the officer repeated, “You, your sister and parents
were attempting to immigrate to the United States
today, is that correct?,” Faisal responded, “What does
that mean?” Faisal refused to sign the record of his state-
ment or any other documents because he did not
believe they were correct. In his petition before this
court, he has tendered an affidavit that he says he
would offer if the case were remanded for further pro-
ceedings and he could submit his own evidence. He
says that he repeatedly told the officer that he was em-
ployed in Pakistan, that he was not lying, and that he
had come to visit his brother and vacation with his
family. Faisal asserts that the officer said that Pakistanis
and Muslims “always come to the United States to
marry or to get a job. She also said that we always lie
and that this is what I was doing.”
Mona’s removal proceedings were conducted through
an interpreter, but she was not provided an interpreter
during her initial questioning the prior week. Although
the statute does not require it, regulations issued by the
Department of Homeland Security provide that during
the interview process, “[i]nterpretive assistance shall be
used if necessary to communicate with the alien.” 8 C.F.R.
§ 235.3(b)(2)(i). The officer in the removal proceedings
6 Nos. 09-3825 & 09-3882
referred back to Mona’s answers during the earlier ques-
tioning and refused to re-interview her on matters
related to the initial interview. When asked what the
purpose of her visit was, she responded, “I am here to
visit my brother and my new sister-in-law and vacation.”
She agreed that she had told an officer during the
initial interview that she would attend school or marry
someone in the United States if that is what her family
told her to do because she willingly allows her family to
make her life decisions. Mona admitted that she brought
her school transcripts and diplomas with her.
The government moves to dismiss the petitions under
8 U.S.C. § 1252(a)(2)(A), which provides that “no court
shall have jurisdiction to review” an order of expedited
removal under § 1225(b)(1). Although § 1252(e)(2) con-
tains a limited exception permitting review of specific
determinations by habeas corpus petitions, the Khans
do not argue that subsection (e) applies here. Instead, they
assert only that this court may have jurisdiction under
a “safety valve” established for substantial constitu-
tional questions, when review would otherwise be
barred by § 1252, “to enable judicial correction of bizarre
miscarriages of justice.” LaGuerre v. Reno, 164 F.3d 1035,
1040 (7th Cir. 1998). See also Singh v. Reno, 182 F.3d 504,
510 (7th Cir. 1999). This is such a case, they say, in light
of the government’s position, which Faisal characterizes
as: “even if no power has been conveyed by the legisla-
tive to the executive branch to enter the removal order
at issue herein, even if the order is legally flawed, not-
withstanding that the Petitioner was questioned for
seven hours in the dead of night without any interpreter
Nos. 09-3825 & 09-3882 7
despite the agency’s own regulations calling for one,
no court has the power to consider the legality of the
agency’s actions.” They opine that this is a proposition
of frightening breadth.
The government responds that this court’s cases estab-
lishing a safety valve are distinguishable because they
did not involve the same jurisdictional bar that governs
this case. The review-limiting provisions in those cases,
which involved § 1252(a)(2)(C) and § 1252(g), left open
the opportunity for aliens (who could have filed habeas
corpus petitions in the district courts prior to the 1996
Amendments to the Immigration and Naturalization
Act) to bring constitutional issues directly before the
courts of appeals. See Morales-Ramirez v. Reno, 209 F.3d
977 (7th Cir. 2000); Singh, 182 F.3d 504; LaGuerre, 164
F.3d 1035. Moreover, section 1252(a)(2)(D) specifically
provides that “Nothing in subparagraph (B) or (C), or
in any other provision of this chapter (other than this
section) which limits or eliminates judicial review, shall
be construed as precluding review of constitutional
claims or questions of law.” Section 1252(a)(2)(A), how-
ever, is not mentioned in § 1252(a)(2)(D) as leaving
open such an opportunity; to the contrary, it expressly
prohibits aliens from raising such claims before the
court of appeals. See Hussain v. Keisler, 505 F.3d 779, 784
(7th Cir. 2007) (“Section 1252(a)(2)(D) plainly states
that other limitations on judicial review in ‘this section’—
that is, section 1252—still apply.”). Other circuits have
held that constitutional and statutory claims arising in
expedited removal proceedings are not reviewable. Garcia
de Rincon v. DHS, 539 F.3d 1133, 1138-39 (9th Cir. 2008)
8 Nos. 09-3825 & 09-3882
(Section 1252(a)(2)(D) does not apply to the jurisdic-
tional limitations in § 1252(a)(2)(A)); Turgerael v.
Mukasey, 513 F.3d 1202, 1205-06 (10th Cir. 2008) (Sec-
tion 1252(a)(2)(D) preserves the jurisdictional bar of
§ 1252(a)(2)(A)). While the Khans attempt to distin-
guish these cases because they involved collateral attacks
to expedited removal in the context of reinstatement of
removal, the language of the cases is not so limited,
and nearly all of the cases addressing the expedited
removal statute arise in the reinstatement context.
The Khans acknowledge that this court’s cases recog-
nizing a safety valve involved § 1252(a)(2)(C), whereas
they were at the point of initial entry where their con-
stitutional rights were at their lowest ebb. They protest,
nevertheless, that the purpose of the “safety valve” theory
is that some limited jurisdictional review must be
available despite congressional attempts to bar review.
Cf. INS v. St. Cyr, 533 U.S. 289, 304-05 (2001) (determining
that some jurisdiction must continue to exist over
pure questions of law and constitutional questions
but noting the absence of any express repeal of § 2241
habeas corpus jurisdiction). Here, the Khans acknowl-
edge that there has been an express repeal of jurisdiction.
They nonetheless assume that the court may somehow
disregard the jurisdiction-stripping statute and reach
their constitutional issues under the safety valve. Indeed,
they go on to suggest that it would be anomalous for
the court to refuse to consider statutory arguments
since courts prefer to decide a case on legal grounds
rather than constitutional grounds. They make the
specific argument that the applicable regulation, 8 C.F.R.
Nos. 09-3825 & 09-3882 9
§ 235.3, is invalid because it grants the government
agents the power to order removal without basing any
factual findings on clear, convincing, and unequivocal
evidence. They argue that there is nothing in § 1225(b)(1)
to indicate that Congress intended to modify the rule
from Woodby v. INS, 385 U.S. 276, 286 (1966), that no
deportation order may be entered unless it is found by
clear, unequivocal, and convincing evidence that the
facts alleged as grounds for deportation are true. They
believe that doubtful cases should be referred to
an immigration judge, giving effect to the statutory pro-
visions whereby applicants for admission who are not
“clearly and beyond a doubt entitled to be admitted” be
referred to an immigration judge for a hearing. 8 U.S.C.
§ 1225(b)(2)(A). Finally, they point out that the removal
orders do not charge that they engaged in fraud in viola-
tion of 8 U.S.C. § 1182(a)(6)(C), and without fraud, there
is no support that they lacked valid visas.
The troubling reality of the expedited removal pro-
cedure is that a CBP officer can create the § 1182(a)(7)
charge by deciding to convert the person’s status from
a non-immigrant with valid papers to an intending im-
migrant without the proper papers, and then that same
officer, free from the risk of judicial oversight, can
confirm his or her suspicions of the person’s intentions
and find the person guilty of that charge. The entire
process—from the initial decision to convert the person’s
status to removal—can happen without any check on
whether the person understood the proceedings, had an
interpreter, or enjoyed any other safeguards. To say that
this procedure is fraught with risk of arbitrary, mistaken,
10 Nos. 09-3825 & 09-3882
or discriminatory behavior (suppose a particular CBP
officer decides that enough visitors from Africa have
already entered the United States) is not, however,
to say that courts are free to disregard jurisdictional
limitations. They are not, and we thus must align our-
selves with the courts that have considered the issue
and hold that we lack jurisdiction to inquire whether
the expedited removal procedure to which the Khans
were subjected was properly invoked. Brumme v. INS,
275 F.3d 443 (5th Cir. 2001); Li v. Eddy, 259 F.3d 1132,
1134 (9th Cir. 2001), opinion vacated as moot, 324 F.3d 1109
(9th Cir. 2003) (“On its face, subsection (e)(2) does not
appear to permit the court to inquire into whether
section 1225(b)(1) was properly invoked, but only
whether it was invoked at all.”). Under § 1252(e), which
sets forth the limited exceptions to the jurisdictional bar,
a court has jurisdiction to inquire only “whether such
an order in fact was issued and whether it relates to the
petitioner. There shall be no review of whether the alien
is actually inadmissible or entitled to any relief from
removal.” 8 U.S.C. § 1252(e)(5).
In a similar situation, the Fifth Circuit affirmed a
district court’s dismissal for lack of jurisdiction of a
habeas corpus petition challenging an expedited removal
order. Brumme v. INS, 275 F.3d 443 (5th Cir. 2001). The
petitioner was a native and citizen of Germany, but
she made frequent trips to the United States, owned
a home in Tucson, and had a visitor’s visa valid
through 2005. In March 2000, she and her husband re-
turned to the United States and received entry permits
valid through August 2000. In July 2000, the petitioner
Nos. 09-3825 & 09-3882 11
went to Germany for 10 days to visit her mother and
attempted to re-enter the United States to return to her
husband, who was being treated here for cancer. The
INS inspector determined that she intended to become
an immigrant and did not possess a valid immigrant
visa, and she was ordered removed under § 1182(a)(7).
The district court concluded that it lacked jurisdiction
under § 1252(e)(5) to decide the real issues the petitioner
was trying to raise—whether she was admissible or
entitled to relief from removal—and the Fifth Circuit
affirmed the dismissal. Id. at 446.
Finally, the Khans have attempted to challenge the
regulations under which their case has been processed.
But that is nothing but a thinly disguised challenge to
the validity of the expedited removal system and is
untimely under § 1252(e)(3), which permitted a judicial
review in an action instituted in the United States
District Court for the District of Columbia no later than
60 days after it was first implemented. In fact, such a
challenge was brought, and the District Court for the
District of Columbia upheld the regulations as written
against challenges to: (1) the ban on aliens’ communicating
with family, friends and counsel during secondary inspec-
tion; (2) the failure to provide adequate language inter-
pretation at secondary inspection; (3) the failure to
provide adequate access to and participation of counsel
prior to and during the secondary inspection; (4) the failure
to provide adequate information on charges and proce-
dures, the opportunity to contest those charges, and
the failure to provide for review of removal orders; and
(5) the application of these procedures to individuals with
12 Nos. 09-3825 & 09-3882
facially valid documents. American Immigration Lawyers
Ass’n v. Reno, 18 F. Supp. 2d 38, 53-57 (D.D.C. 1998),
aff’d, 199 F.3d 1352 (D.C. Cir. 2000).
As relevant here, the district court rejected the plain-
tiffs’ argument that expedited removal procedures
should apply only to aliens whose travel documents are
facially invalid and that aliens found inadmissible under
§ 1182(a)(6)(C) or (a)(7) based on other factors should
be referred to an immigration judge. 18 F. Supp. 2d at 56.
The court held that the plain language of the statute
provides that inadmissibility under these provisions can
arise for reasons other than facially invalid or absent
papers. Id. “Thus, an inspecting officer can and must
refuse admission if a visa holder fails to establish to
the inspector’s own satisfaction that the visa holder
fulfills the requirements for the classification which his
visa bears. Contrary to plaintiffs’ apparent belief, the
inspector is not statutorily limited to ascertaining that
the ‘face’ of the visa indicates that a consular officer
has found the alien admissible; rather, the inspector
undertakes an independent admissibility determination
himself.” Id. at 57. Finally, the district court ruled that
§ 1252(e)(3)(A)(ii) permitted it to review only the regula-
tions as written, not as applied and not for the agency’s
alleged failure to follow its own regulations. Id. at 58. The
court acknowledged concern, as we do, with the effects
of Congress’s decision to bar the unwritten actions of
the agency from judicial review, particularly where
individual CBP agents are given so much discretion
and are subjected only to a supervisor’s review of their
decisions. Id.
Nos. 09-3825 & 09-3882 13
We nonetheless conclude that we are required by law
to G RANT the government’s motions to dismiss and
D ISMISS the petitions for review for lack of jurisdiction.
The motions to stay removal pending resolution of the
petitions for review are D ENIED.
6-11-10