Case: 12-60677 Document: 00512456686 Page: 1 Date Filed: 12/02/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 2, 2013
No. 12-60677 Lyle W. Cayce
Clerk
ELIGIO VALDIVIEZ-HERNANDEZ, also known as Pablo Hernandez, also
known as Al Hernandez, also known as Pable Hernandez,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Department of Homeland Security
Before JOLLY, DeMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:
The original opinion in this case was issued by the panel on September 26,
2013. We GRANT the petition for rehearing. We withdraw our previous opinion
and substitute the following.
Petitioner Eligio Valdiviez-Hernandez seeks review of the Department of
Homeland Security’s Final Administrative Removal Order issued pursuant to
the Immigration and Nationality Act (INA) § 238(b) , 8 U.S.C. § 1228(b). Because
Valdiviez was an alien convicted of an aggravated felony, he was properly
subject to the expedited administrative removal process. The petition is denied.
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I.
Valdiviez, a native and citizen of Mexico, entered the United States
unlawfully as a child in the 1960s and lived continuously in the United States
until his removal. In February 2011, Immigration and Customs Enforcement
(ICE) initiated an investigation into Valdiviez for “fraudulently using the
identity of a deceased person named Pablo Hernandez.” The investigation
revealed that Validiviez had used Pablo Hernandez’s social security number, and
obtained property, bank accounts, driver’s licenses, and vehicles using the stolen
identity. While searching Valdiviez’s home and vehicle pursuant to a warrant,
ICE agents found thirteen firearms. On November 18, 2011, Valdiviez pleaded
guilty to and was convicted of one count of being an illegal alien in possession of
a firearm in violation of 18 U.S.C. § 922(g)(5).
On January 24, 2012, the Department of Homeland Security (DHS) issued
to Valdiviez while he was still serving his sentence a Notice of Intent, informing
him that he was subject to expedited removal pursuant to INA § 238(b), 8 U.S.C.
§ 1228(b). Valdiviez refused to sign the Notice of Intent. Valdiviez did not
exercise his right to file a written response to the Notice of Intent. On February
28, 2012, DHS served Valdiviez with a Final Administrative Removal Order
(FARO), stating that Valdiviez was removable because he had been convicted of
an aggravated felony and was not a citizen of the United States nor lawfully
admitted for permanent residence. The FARO further stated that Valdiviez was
“ineligible for any relief from removal that the Secretary of Homeland Security
may grant in an exercise of discretion.”
Valdiviez subsequently expressed fear of persecution or torture if he
returned to Mexico. A “reasonable fear” interview was conducted by the asylum
office. See 8 C.F.R. § 208.31(b). The asylum officer determined that Valdiviez did
not have a reasonable fear of persecution or torture. Valdiviez sought review of
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the asylum officer’s decision by an Immigration Judge (IJ). Id. § 208.31(g). The
IJ upheld the asylum officer’s decision. No further appeals were available to
Valdiviez. Id. § 208.31(g)(1).
Valdiviez filed a motion for stay of removal with this court. While the
motion and petition for review were pending, Valdiviez was removed to Mexico.
He subsequently filed a motion asking this court for an order (1) directing ICE
to show cause why this court should not impose sanctions; or (2) instruct ICE to
return Valdiviez to the United States; or (3) admonish ICE for usurping judicial
authority. The motion was carried with this case.
II.
Valdiviez challenges two aspects of the FARO. First, Valdiviez argues that
he is not subject to the expedited removal process because he is not an alien as
described in the removal statute. Specifically, Valdiviez asserts that the
expedited removal process applies only to aliens who have been “admitted” to
the United States and have committed an aggravated felony, and does not apply
to aliens who entered the United States unlawfuly. Second, he argues that the
FARO incorrectly stated that he was not entitled to any discretionary relief,
which would qualify him for an adjustment of status.
A.
Two issues must be addressed in analyzing whether we have jurisdiction
to consider this petition for review. First, there is generally no right to seek
review of an order of removal entered by a Department of Homeland Security
Service officer after expedited removal procedures. 8 U.S.C. § 1252(a)(2)(c); 8
C.F.R. § 238.1. Even if an exception exists, judicial review can be had of “a final
order of removal only if . . . the alien has exhausted all administrative remedies
available to the alien as of right.” 8 U.S.C. § 1252(d)(1). The exhaustion
requirement is jurisdictional. See Lopez-Dubon v. Holder, 609 F.3d 642, 644 (5th
Cir. 2010). We address the exhaustion point first.
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The government asserts that Valdiviez failed to exhaust his administrative
remedies because he did not file a response to the Notice of Intent, leaving this
court without jurisdiction to review his petition. Valdiviez counters that the
available administrative remedies are limited to challenges of factual
deficiencies, not legal conclusions. He further argues that DHS officers are not
trained to interpret immigration statutes to the extent of an IJ or the Board of
Immigration Appeals (BIA).
INA § 238(b), 8 U.S.C. § 1228(b), authorizes the Attorney General to
expedite removal of an alien who is not a lawful permanent resident and who is
deportable for committing an aggravated felony. 8 U.S.C. § 1228(b)(1), (2)(A).
The alien has ten calendar days to file a written response to the Notice of Intent.
8 C.F.R. § 238.1(c)(1). In response, an alien may designate a country of removal;
rebut the allegations supporting the charge; request to review the Government’s
evidence supporting the charge; request an extension of time to respond; and
request withholding of removal under the Convention Against Torture (CAT). Id.
If the alien does not timely rebut the charges, a DHS officer issues a FARO and
the alien may be removed fourteen days after issuance of that order. Id. §
238.1(d)(1).
Valdiviez challenges the FARO’s legal conclusion that he is subject to the
expedited removal process on the ground that it applies only to aliens “admitted”
to the United States. Although the Notice of Intent included conclusions of law
and Valdiviez had an opportunity to respond to the allegations supporting the
charges against him, the relevant regulations indicate that the response process
is geared toward resolving only issues of fact. Id. §238.1(d)(2)(i),(ii) (stating that
the DHS officer may base its decision following a response to a Notice of Intent
on whether or not the alien demonstrated a genuine issue of material fact).
Further, aliens subject to expedited removal do not appear before an IJ, nor can
they appeal an adverse decision to the BIA. See generally id. § 238.1. The
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relevant statutes and corresponding regulations therefore did not provide
Valdiviez with an avenue to challenge the legal conclusion that he does not meet
the definition of an alien subject to expedited removal. As such, Valdiviez did not
fail to exhaust his administrative remedies.1
B.
Even without the bar of exhaustion, there is still the impediment that “no
court shall have jurisdiction to review any final order of removal against an alien
who is removable by reason of having committed [an aggravated felony].” 8
U.S.C. § 1252(a)(2)(C). Nonetheless, another section of that same statute
recognizes that “an appropriate court of appeals” has jurisdiction to consider
“constitutional claims or questions of law raised upon a petition for review.” Id.
1252(a)(2)(D). The claims presented are of that nature, and we have jurisdiction
to review them.
1.
The prerequisites for expedited removal are that the person be (1) an alien,
(2) who has committed a crime covered in 8 U.S.C. § 1227(a)(2)(A)(iii)
(aggravated felony), and (3) has not been admitted, even conditionally, as a
lawful permanent resident:
(b) Removal of aliens who are not permanent residents
(1) The Attorney General may, in the case of an alien described in
paragraph (2), determine the deportability of such alien under
section 1227(a)(2)(A)(iii) of this title (relating to conviction of an
aggravated felony) and issue an order of removal pursuant to the
procedures set forth in this subsection or section 1229a of this title.
(2) An alien is described in this paragraph if the alien–
1
This is not to say that there are no administrative remedies available to a petitioner
challenging a Notice of Intent; rather, under the circumstances of this case, the legal question
presented was not subject to the available methods of administrative review set forth in
8 C.F.R. § 238.1(c)(1), (d)(2)(i),(ii).
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(A) was not lawfully admitted for permanent residence at the time
at which proceedings under this section commenced; or
(B) had permanent resident status on a conditional basis . . . at the
tie that proceedings under this section commenced.
8 U.S.C. § 1228(b).
There is no dispute that Valdiviez is an alien who committed an
aggravated felony (illegal alien in possession of a firearm), and who has no
status as a lawful permanent resident. Indeed, Valdiviez conceded he was
removable as an aggravated felon. Section 1227 (a)(2)(A)(iii) states that “[a]ny
alien who is convicted of an aggravated felony at any time after admission is
deportable.” (emphasis added). The term “admission” is defined as “the lawful
entry of the alien into the United States after inspection and authorization by
an immigration officer.” Id. § 1101(a)(13)(A).
Valdiviez argues that § 1228(b) requires an alien to have been convicted
of an aggravated felony as defined in § 1227(a)(2)(A)(iii) in order to be subject to
expedited removal, and § 1227(a)(2)(A)(iii) requires that an alien have committed
the aggravated felony after having been “admitted” to the United States.
Valdiviez asserts that because he was not admitted into the United States but
instead entered unlawfully, he does not meet the requirements incorporated by
reference into § 1228(b) and is not subject to expedited removal. Essentially,
Valdiviez argues that expedited removal proceedings apply only to lawfully
admitted non-permanent resident aliens who committed aggravated felonies.
This argument has been uniformly rejected by other courts of appeals. See
Us-Zepeda v. Holder, 446 F. App’x 562, 563 (4th Cir. Sept. 15, 2011) (finding that
petitioner was properly subject to expedited removal proceedings despite
petitioner not having been “admitted” to the United States); G.S. v. Holder, 373
F. App’x 836, 847 (10th Cir. Apr. 15, 2010) (finding that § 1228(b) applies to
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aliens not lawfully admitted for permanent residence and that the “cross-
reference to § 1227(a)(2)(A)(iii) simply mean[s] that, among persons who are not
permanent residents, only aggravated felons are subject to expedited
administrative removal, regardless of whether they were previously admitted”
(internal quotations omitted and alterations in original)); United States v.
Hernandez-Vermudez, 356 F.3d 1011, 1014-15 (9th Cir. 2004) (deferring to the
Attorney General’s interpretation that § 1228(b) applies to aliens who are not
lawful permanent residents); Bamba v. Riley, 366 F.3d 195, 198 (3rd Cir. 2004)
(finding that the “better interpretation” of § 1228(b) is that the statute applies
to all aliens not admitted for permanent residence who committed an aggravated
felony); Bazan-Reyes v. I.N.S., 256 F.3d 600, 605 (7th Cir. 2001) (finding that
nothing in § 1228(b) limits the expedited removal process to “admitted” aliens).
Such unanimity indicates the common-sense appeal to the outcome each
court reached. Even so, we are not immune, as likely neither were the other
circuits, to the logical appeal of a textual argument that Congress limited the
applicability of expedited removal under § 1228(b)(1) to the terms of the statute
it incorporates by reference, namely, § 1227(a)(2)(A)(iii). We conclude the
textual argument is weak for the following reasons.
In 1990 when “aggravated felony” was added to the other grounds for
deportability under what is now § 1227, it referred to an “alien who is convicted
of an aggravated felony at any time after entry is deportable.” Immigration Act
of 1990, Pub. L. No. 101-649, sec. 602, 104 Stat. 4978, 5077-5080. That language
was not changed when what is now Section 1228(b)(1) was adopted in 1994. The
adoption of the Illegal Immigration Reform Responsibility Act of 1996 (IIRIRA),
caused the word “entry” to be changed to “admission” in § 1227(a)(2)(A)(iii).
Pub. L. No. 104-208, sec. 308, 110 Stat. 3009-546, 3009-621. As we will discuss
shortly, it is clear that Congress sought to streamline the procedures for
removing aliens convicted of aggravated felonies. Because the new procedures
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adopted in 1994 applied to all who had made an “entry,” it did not matter
whether the offense was committed after inspection and admission, or after a
surreptitious and illegal entry. To accept petitioner’s argument, we would have
to conclude that the enactment of IIRIRA in 1996 narrowed the application of
expedited removal for reasons that are entirely unclear.
We discern a different effect, one that illuminates the relation between the
relevant provisions of § 1227 and § 1228. The many subparts of § 1227 identify
“classes of deportable aliens” who upon order of the Attorney General may be
deported. § 1227(a). The Attorney General may exercise that authority through
removal proceedings commenced by an immigration judge. See 8 U.S.C. §§ 1229
& 1229a. Those proceedings may require determining whether an alien is an
aggravated felon under the requirements of § 1227(a)(2)(A)(iii). Congress in
1996 changed the point at which deportation grounds under § 1227 applied to an
alien instead of exclusion grounds under § 1182, making the decision turn on
whether the alien had been admitted. The effects were these:
The regulatory focus on admission rather than entry is in large part
the product of Congress’s comprehensive revision of the
Immigration and Nationality Act in 1996. Prior to 1996, . . .
noncitizens who had entered – even surreptitiously – were subject
to grounds of deportability rather than excludability; they were also
entitled to the greater procedural protections of a deportation
proceeding rather than an exclusion proceeding. In 1996, Congress
rewrote the INA, largely eliminating the exclusion-deportation line
and replacing it with a focus on the concept of “admission.” . . . And
because admission is specifically defined as “the lawful entry of the
alien into the United States after inspection and authorization by
an immigration officer,” this change puts immigrants who sneak
across the border on the same footing as those who present
themselves at the border. INA § 101(a)(13), 8 U.S.C. § 1101(a)(13).
Both are subject to the grounds of inadmissibility, and both are
more likely to be screened using summary procedures.
Adam Cox and Eric A. Posner, The Second-Order Structure of Immigration Law,
59 STAN L. REV. 809, 822 n.61 (2007).
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After 1996, an alien who had been convicted of qualifying offenses under
Section 1227, such as a crime involving moral turpitude, or certain multiple
criminal convictions, or certain drug or firearm offenses, or any aggravated
felony, could be ordered removed by an immigration judge when, besides any
other requirements, there was proof that the alien committed such an offense
after admission. 8 U.S.C. § 1227 (a) (2)(A) & (B).
Section 1228 gave the Attorney General authority to make available
“special removal proceedings at certain Federal, State, and local correctional
facilities” for those convicted of any of several offenses, including but not limited
to aggravated felonies. § 1228(a)(1). This section allows § 1229a proceedings,
with certain exceptions, to take place within the institutions. Id. Section
1228(a)(3) requires the Attorney General to adopt procedures for aliens convicted
of aggravated felonies so that their removal proceedings will be completed before
their release from prison. § 1228(a)(3)(A).
In addition to Section 1228(a)’s institutional removal program, Section
1228(b) provides for an administrative removal program that does not involve
an immigration judge, does not provide for an administrative appeal, and
judicial review is available, if at all, on limited terms such as we discussed
earlier. See 8 C.F.R. § 238.1 (details the procedures for expedited removal).
Though petitioner Valdiviez was processed for removal while in prison serving
his sentence for an aggravated felony, § 1228(b) does not state that the
procedures apply only to those currently incarcerated.
These procedures may be used for “an alien described in paragraph (2),”
i.e., an alien without lawful permanent resident status. § 1228(b)(1) & (2). There
is no suggestion that the class of aliens to whom these special procedures apply
is further limited. Thus, the expedited procedures apply to aliens admitted after
inspection and to those who evaded inspection. When § 1227 was revised two
years after the adoption of § 1228(b), the change shifted the dividing line
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between when deportation grounds would apply to someone with a conviction for
an aggravated felony and when exclusion rules would apply. We see § 1228 as
independent of the different deportation and exclusion grounds and procedures.
It creates a summary process for removing aliens with qualifying convictions,
many and perhaps most being processed while they are serving their prison
sentences so that they will be removed immediately after completing them. To
apply limits from § 1227 and distinguish between summary procedures
applicable to prison inmates who were and those who were not admitted into the
country is a complete variance from the thrust of § 1228(b).2 Even if DHS also
uses these expedited procedures for those not then serving prison sentences (and
we have no evidence on that), such wider availability does not affect that there
is neither § 1228 text nor logical reason for using prior valid admission to limit
which aggravated felons, as they are completing their prison sentences, can be
removed expeditiously.
Confirmation of our understanding appears in the regulations that were
adopted by the Department of Homeland Security. See 8 C.F.R. § 238.1.3 An
administrative removal order may be entered if the following findings are made:
(1) the person is an alien, (2) is not a lawful permanent resident; (3) has been
2
Valdiviez argues that by stating the “deportability” of an alien is to be determined in
the expedited removal procedures, Congress was adopting the INA’s distinction between aliens
who have been admitted and are “deportable” and aliens who have not been admitted and are
“inadmissible.” Cf. 8 U.S.C. § 1182 (captioned “inadmissible aliens”) and 8 U.S.C. § 1227
(captioned “deportable aliens”). Valdiviez argues that Congress must have intended §
1228(b)’s expedited removal proceedings to apply only to “deportable” aliens, i.e., those aliens
subject to grounds for deportation which apply only after admission. We accept that using the
word “removability” would have fit better with our interpretation of § 1228(b), but we do not
agree that the word choice overcomes all the contrary indications of the breadth of coverage.
At most the word creates ambiguity, which, as we will discuss, is dispelled by the regulations
adopted first by the Attorney General, and now implemented by DHS.
3
Section 1228(b)(1) gives the Attorney General authority to promulgate regulations.
This obligation was transferred to the Department of Homeland Security. Homeland Security
Act of 2002, Pub. L. No. 107-296, sec. 441, 116 Stat. 2135, 2177.
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convicted of an aggravated felony as defined in Section 101(A)(43) of the INA,
and (4) is deportable under Section 1227(a)(2)(A)(iii), “including an alien who has
neither been admitted nor paroled, but who is conclusively presumed to be
deportable . . . by operation of section 238(c).” 8 C.F.R. § 238.1(b)(1)(i)-(iv). Thus,
the regulation anticipates the current argument and states that the expedited
procedures apply even if the alien has never been admitted.
In sum, we agree with our sister circuits and hold that § 1228(b)’s
expedited removal process applies to all aliens convicted of an aggravated felony
who are not admitted for permanent residence. That makes this section a self-
contained set of provisions for special treatment of aggravated felons. We
decline to interpret the cross reference in § 1228(b) to aggravated felony crimes
in § 1227(a)(2)(A)(iii) as a narrowing of the class of aliens subject to the
expedited removal process. Moreover, Valdiviez’s proposed interpretation
would contravene Congress’s intent to expedite removal of aliens who have
committed aggravated felonies. See Zhang v. INS, 274 F.3d 103, 108 (2d Cir.
2001) ( “[I]t is beyond cavil that one of Congress’s principal goals in enacting
IIRIRA was to expedite the removal of aliens who have been convicted of
aggravated felonies.” (citations omitted and alterations in original));
Hernandez–Vermudez, 356 F.3d at 1014 (“There simply is no denying that in
enacting . . . [IIRIRA], Congress intended to expedite the removal of criminal
aliens.” (citing H.R. Conf. Rep. No. 104–828, at 215 (1996); H.R. Rep. No.
104–469(I), at 12, 107, 118–25 (1996))).
Because Valdiviez is an alien, an aggravated felon, and not a lawful
permanent resident, he was subject to expedited removal proceedings.
2.
Valdiviez also argues that the FARO incorrectly advised him that he was
ineligible for any discretionary relief from removal. Specifically, Valdiviez argues
that he was prima facie eligible for the “Registry,” a mechanism that permits the
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Attorney General, in his discretion, to grant permanent resident status to
individuals who have resided continuously in the United States since January
1, 1972; demonstrate good moral character; are not ineligible for naturalization;
and are not otherwise deportable. See INA § 249, 8 U.S.C. § 1259. Valdiviez
asserts that the INA does not automatically disqualify aliens with criminal
records, but rather requires consideration of several factors to determine
whether the alien is of good moral character.
Section § 1228(b)(5), however, states that “[n]o alien described in this
section shall be eligible for any relief from removal that the Attorney General
may grant in the Attorney General’s discretion.” 8 U.S.C. § 1228(b)(5) (emphasis
added); see also United States v. Benitez-Villafuerte, 186 F.3d 651, 659 (5th Cir.
1999). Valdiviez is subject to removal under § 1228(b) and thus is statutorily
ineligible for any discretionary relief.
III.
Valdiviez was removed by ICE to Mexico while this petition for review and
his motion for stay of removal were pending. Due to his removal, Valdiviez filed
a motion with this court seeking an order (1) directing ICE to show cause why
this court should not impose sanctions; or (2) alternatively, instruct ICE to
return Valdiviez to the United States; or (3) alternatively, admonish ICE for
usurping judicial authority.
On September 11, 2012, Valdiviez filed a motion for stay of removal with
this court. On October 24, 2012, this court ordered Valdiviez to submit a brief in
support of his motion for stay of removal, and later ordered the Government to
respond. Valdiviez was removed while the motion to stay was pending and this
court subsequently denied the motion as moot.
Valdiviez argues that by removing him to Mexico while his motion for stay
of removal was pending, ICE usurped this court’s authority and interfered with
this court’s discretion to determine whether a stay was warranted. He asserts
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that the Government intentionally removed Valdiviez in order to render his
motion for stay of removal moot. Valdiviez contends that removal of aliens
pending a motion for stay of removal is a common practice of ICE officials in the
Fifth Circuit. The Government asserts that there was no intention to usurp this
court’s authority, nor any evidence to support Valdiviez’s contention that the
removal was designed to moot his stay request. The Government further
contends that Valdiviez was not diligent in seeking a stay of removal and failed
to make inquires into his removal status as was required. See FIFTH CIRCUIT
RULE 27.3.1.
ICE did not violate any order of this court. Further, neither the relevant
portions of the INA nor the regulations provide for an automatic stay of an
alien’s removal during the 30-day period for an alien to file a petition for review
with this court. See 8 U.S.C. § 1252(b)(3)(B); Tesfamichael v. Gonzales, 411 F.3d
169, 171 (5th Cir. 2005). Rather, the grant of a stay is an exercise of judicial
discretion based on the circumstances of the case. See Nken v. Holder, 556 U.S.
418, 433-34 (2009). Finally, although this court would certainly disapprove of
any practice by ICE officials to intentionally thwart rulings on motions for stay
of removal, there is no evidence before this court to support such allegation.
Because we conclude that the INS acted lawfully in removing Valdiviez while his
motion for stay of removal was pending, his motion is denied.
IV.
For the foregoing reasons, the petition for review is DENIED. The motion
carried with the case is DENIED.
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E. GRADY JOLLY, Circuit Judge, specially concurring:
I concur in the result the panel reaches. In my opinion, however, the plain
reading of 8 U.S.C. § 1228(b), for which the petitioner advocates, is that
provision’s best interpretation. I concur solely because I defer to the Department
of Homeland Security and all other circuits that have addressed the provision,
cf. Chevron, U.S.A., Inc. V. Natural Res. Def. Council, Inc., 467 U.S. 837, 843
(1984), and thus I can see no compelling reason to initiate a circuit split.
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