FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MANJINDER SINGH, No. 19-70932
Petitioner,
Agency No.
v. A215-827-867
WILLIAM P. BARR, Attorney
General,
Respondent.
KULWANT SINGH, No. 19-71025
Petitioner,
Agency No.
v. A201-431-264
WILLIAM P. BARR, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted September 2, 2020
Seattle, Washington
Filed December 9, 2020
2 SINGH V. BARR
Before: Jay S. Bybee and Daniel P. Collins, Circuit
Judges, and Richard G. Stearns,* District Judge.
Opinion by Judge Bybee
SUMMARY**
Immigration
The panel dismissed for lack of jurisdiction, under
8 U.S.C. § 1252, Manjinder Singh and Kulwant Singh’s
petitions for review of separate immigration judge decisions
concluding that they lacked jurisdiction to reopen credible
fear proceedings under 8 C.F.R. § 1208.30(g)(2)(iv)(A).
The panel observed that judicial review of an expedited
removal order, including the merits of a credible fear
determination, is expressly prohibited by § 1252(a)(2)(A)(iii).
Petitioners stressed that they were not asking this court to
review the merits of the IJs’ credible fear determinations, but
instead were asking the court to exercise jurisdiction to
review the IJs’ denials of motions to reopen on the grounds
that the IJs misconstrued their authority to do so under
8 C.F.R. § 1208.30(g)(2)(iv)(A). The panel concluded that it
could not do so, explaining that where Congress explicitly
withdraws jurisdiction to review a final order of deportation,
*
The Honorable Richard G. Stearns, United States District Judge for
the District of Massachusetts, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
SINGH V. BARR 3
authority to review motions to reconsider or to reopen
deportation proceedings is thereby likewise withdrawn.
While recognizing that § 1252(e) authorizes some judicial
review of expedited removal orders and policies and
procedures, the panel concluded that it did not provide
jurisdiction over petitioners’ specific challenges.
The panel noted that in Ayala v. Sessions, 855 F.3d 1012
(9th Cir. 2017), and Bartolome v. Sessions, 904 F.3d 803 (9th
Cir. 2018), this court determined that it had jurisdiction to
consider an IJ’s denial of motions to reopen or reconsider, but
the panel concluded that those cases were distinguishable,
because they involved review of reasonable fear
determinations in the context of a reinstatement of a prior
removal order under 8 U.S.C. § 1231(a)(5), rather than a
credible fear determination under § 1225(b)(1).
The panel also concluded that 8 U.S.C. § 1252(a)(2)(D),
which re-vests the court with jurisdiction to hear certain
constitutional claims or questions of law, did not apply,
because that provision provides jurisdiction to review claims
otherwise barred under § 1252(a)(2) Subparagraphs (B) or
(C), or those barred by provisions other than § 1252, but by
its own terms does not cover claims barred by
Subparagraph (A), which was the provision that applied in
this case. The panel explained that even a decision that might
appear to fall within Subparagraphs (B) or (C) is not
reviewable under § 1252(a)(2)(D) if it is subject to a separate
prohibition of Subparagraph (A).
The panel noted that petitioners’ Suspension Clause
challenge was foreclosed by Department of Homeland
Security v. Thuraissigiam, 140 S. Ct. 1959 (2020).
4 SINGH V. BARR
COUNSEL
Matthew Borowski (argued), Borowski Witmer Immigration
Lawyers, Buffalo, New York for Petitioners.
Tracie N. Jones (argued), Trial Attorney; Andrew N.
O’Malley and Timothy G. Hayes, Senior Litigation Counsel;
Cindy S. Ferrier, Assistant Director; Ethan P. Davis, Acting
Assistant Attorney General; Office of Immigration Litigation,
Civil Division, United States Department of Justice,
Washington, D.C.; for Respondent.
OPINION
BYBEE, Circuit Judge:
Petitioners Manjinder Singh and Kulwant Singh are Sikhs
from Punjab, India who entered the United States in late
2018.1 The United States Customs and Border Patrol (CBP)
determined that Petitioners were inadmissable as aliens not in
possession of valid entry documents, and processed them for
expedited removal. Manjinder and Kulwant each expressed
a fear of returning to India, and credible fear interviews were
conducted by United States Citizenship and Immigration
Services (USCIS) asylum officers. The asylum officers made
negative credible fear determinations in both cases. After
review, immigration judges (IJs) concurred in the negative
1
Manjinder and Kulwant’s petitions were brought separately, and the
record does not suggest any relationship between the two. However,
because the petitions raise identical legal issues and have extensive factual
similarities, we address the petitions together. We will refer to them either
as “Petitioners” or by their first names to avoid confusion.
SINGH V. BARR 5
credible fear determinations. Petitioners moved for the IJs to
exercise sua sponte authority to reopen their credible fear
determinations. Both IJs denied the motions on the basis that
IJs lack jurisdiction to reopen credible fear proceedings under
8 C.F.R. § 1208.30(g)(2)(iv)(A). Petitioners seek review of
the denials of the motions to reopen.
Because we lack jurisdiction under 8 U.S.C. § 1252 to
review Manjinder’s and Kulwant’s petitions, we dismiss.
I. FACTUAL AND PROCEDURAL HISTORY
A. Manjinder Singh
Manjinder Singh is a native and citizen of India. In
October 2018, Manjinder encountered border patrol agents
outside of a U.S. port of entry. CBP determined Manjinder
was inadmissible as an alien not in possession of entry
documents, processed Manjinder for expedited removal
pursuant to 8 U.S.C. § 1225(b)(1),2 conducted an initial
2
The INA sets out streamlined procedures for the execution of
expedited removal orders, permitting removal of certain aliens “without
further hearing or review unless the alien indicates either an intention to
apply for asylum . . . or a fear of persecution.” 8 U.S.C.
§ 1225(b)(1)(A)(i). If the alien expresses either, the alien must be referred
to an asylum officer for a credible fear interview. Id. § 1225(b)(1)(A)(ii).
If the asylum officer determines the alien does have a credible fear of
persecution, the alien must be detained for consideration of an asylum
application. Id. § 1225(b)(1)(B)(ii).
If the asylum officer determines that the alien does not have a credible
fear, the alien will be ordered removed without further review unless the
alien requests review by an IJ. Id. §§ 1225(b)(1)(B)(iii)(I), (III). The IJ’s
decision is final and may not be appealed. 8 C.F.R.
§ 1208.30(g)(2)(iv)(A). Even if the IJ affirms the asylum officer’s
6 SINGH V. BARR
interview, and completed a record of his sworn statement.
Because Manjinder expressed a fear of returning to India,
CBP referred him to USCIS for a credible fear interview. In
the interview, Manjinder told the officer that he was a Sikh
from Punjab, India; in February 2018, he was working for the
Mann Party; in May and July 2018, he was harmed by
members of the Congress Party; and he feared future harm
from the Congress Party and the Bhartiya Janta Party (BJP)
if he returned to India. The asylum officer found that
Manjinder was not credible and therefore lacked a credible
fear of harm upon return to India.
In November 2018, CBP presented Manjinder with an
expedited removal order. At this time, Manjinder requested
review of the credible fear determination by an IJ. The matter
was referred to Judge Santos-Garcia who held a hearing and
affirmed the asylum officer’s negative credible fear
determination.
Almost four months later, in March 2019, Manjinder filed
a motion to reopen the credible fear proceedings. His motion
asserted that the asylum officer and Judge Santos-Garcia
erred in determining that he was not credible and that he
received ineffective assistance of counsel because his counsel
did not attend the hearing. Judge Santos-Garcia denied the
motion to reopen for a lack of jurisdiction under 8 C.F.R.
§ 1208.30(g)(2)(iv)(A). Judge Santos-Garcia also found, in
the alternative, that the motion to reopen was untimely and
Manjinder had been given the opportunity to explain his
statements at the November hearing. Manjinder now
petitions for review of Judge Santos-Garcia’s denial of his
determination the USCIS may reconsider a negative credible fear finding
after providing notice to the immigration judge. Id.
SINGH V. BARR 7
motion to reopen the credible fear determination. Manjinder
does not request that we review the merits of the credible fear
determination.
B. Kulwant Singh
Kulwant Singh is a thirty-four-year-old male, a native and
citizen of India. Kulwant encountered border patrol agents at
a port of entry in December 2018. CBP determined that
Kulwant was inadmissable as an alien not in possession of
valid entry documents and processed him for expedited
removal pursuant to 8 U.S.C. § 1225(b)(1). During his
interview with CBP, Kulwant expressed a fear of returning to
India because he was in danger from the BJP. CBP referred
Kulwant for a credible fear interview with a USCIS asylum
officer.
Kulwant’s credible fear interview took place in January
2019. At his credible fear interview, Kulwant stated that he
was a Sikh from Punjab, India; he had been a member of the
Mann Party since 2013; in November 2017 and July 2018, he
was attacked by the BJP with baseball bats and wooden
sticks; and he feared future harm from the BJP if he returned
to India. The asylum officer determined that Kulwant was
not credible, and therefore lacked a credible fear of returning
to India. In February 2019, CBP presented Kulwant with an
expedited removal order on the basis of the negative credible
fear determination. Kulwant requested review of the negative
credible fear determination by an IJ.
Judge Attia held a credible fear hearing and concurred in
the asylum officer’s negative credible fear determination and
remanded the case to USCIS for removal. In April 2019,
Kulwant filed a motion to reopen in which he asserted that he
8 SINGH V. BARR
received ineffective assistance of counsel and the asylum
officer erred by mischaracterizing the record. Judge Attia
denied the motion to reopen for a lack of jurisdiction, citing
8 C.F.R. § 1208.30(g)(2)(iv)(A). Kulwant now petitions for
review of Judge Attia’s denial of his motion to reopen.
Kulwant does not request review of the merits of the negative
credible fear determination.
II. JURISDICTION AND STANDARD OF REVIEW
The parties agree that our jurisdiction to review
administrative immigration proceedings is governed by § 242
of the Immigration and Nationality Act (INA), 8 U.S.C.
§ 1252, as revised by § 306 of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L.
No. 104-208, Div. C, § 306, 110 Stat. 3009-607 (1996). The
parties dispute whether 8 U.S.C. § 1252 grants us jurisdiction
over petitioners’ appeals.
We have jurisdiction to consider our own jurisdiction.
See Daas v. Holder, 620 F.3d 1050, 1053 (9th Cir. 2010).
III. ANALYSIS
The parties agree that 8 U.S.C. § 1252 governs our
jurisdiction over the petitions for review. The Government
contends, however, that § 1252(a)(2)(A) deprives us of
jurisdiction to review Manjinder’s and Kulwant’s petitions.
We agree.
We begin with two observations. First, we start from a
“presumption favoring judicial review of administrative
action.” Kucana v. Holder, 558 U.S. 233, 251 (2010).
“When a statute is ‘reasonably susceptible to divergent
SINGH V. BARR 9
interpretation, we adopt the reading that accords with
traditional understandings and basic principles: that executive
determinations generally are subject to judicial review.’” Id.
(quoting Gutierrez de Martinez v. Lamagno, 515 U.S. 417,
434 (1995)). It takes “clear and convincing evidence” to
dislodge this “well-settled” presumption. Kucana, 558 U.S.
at 251–52. Second, we recognize that we have routinely
exercised jurisdiction under § 1252 to review IJ denials of
motions to reopen certain removal proceedings. See, e.g.,
Mata v. Lynch, 576 U.S. 143, 147 (2015) (“[C]ircuit courts
have jurisdiction when an alien appeals from the [Board of
Immigration Appeals’s (BIA’s)] denial of a motion to reopen
a removal proceeding.”); Kucana, 558 U.S. at 249 (holding
that § 1252(a)(2)(B)(ii), which governs judicial review of
discretionary decisions made by the Attorney General or the
Secretary of Homeland Security, “does not proscribe judicial
review of denials of motions to reopen”); Bonilla v. Lynch,
840 F.3d 575, 581 (9th Cir. 2016) (reviewing denial of a
motion to reopen proceedings for adjustment of status);
Hernandez v. Holder, 738 F.3d 1099, 1100–01 (9th Cir.
2013) (reviewing Board’s dismissal for lack of jurisdiction of
a motion to reopen application for cancellation of removal).
Although we have determined that we have jurisdiction to
review an IJ’s denial of motions to reopen or reconsider in
other contexts, see Bartolome v. Sessions, 904 F.3d 803, 815
(9th Cir. 2018); Ayala v. Sessions, 855 F.3d 1012 1017–18
(9th Cir. 2017), we have not yet determined the precise
question at issue here: whether § 1252 prohibits our review
of an IJ’s denial of a motion to reopen a credible fear
determination. See Kucana, 558 U.S. at 250 n.17 (“We do
not reach the question whether review of a reopening denial
would be precluded if the court would lack jurisdiction over
the alien’s underlying claim for relief.”); cf. Cervantes v.
10 SINGH V. BARR
Barr, 769 F. App’x 456, 456 (9th Cir. 2019) (holding that
petitioners failed “to provide us with a sufficient basis for
statutory jurisdiction to review BIA’s dismissal for lack of
jurisdiction of an appeal of a motion to reopen” expedited
removal proceedings). We now answer that question, and we
conclude that the language of § 1252 clearly and
convincingly demonstrates that Congress intended to
circumscribe judicial review of motions to reopen credible
fear determinations.
Section 1252(a)(2)(A) governs the availability of judicial
review over expedited orders of removal and specified related
determinations. That section provides:
Notwithstanding any other provision of law
(statutory or nonstatutory) . . . no court shall
have jurisdiction to review—
(i) except as provided in subsection (e),
any individual determination or to entertain
any other cause or claim arising from or
relating to the implementation or operation of
an order of removal pursuant to [8 U.S.C.
§ 1225(b)(1)],
(ii) except as provided in subsection (e), a
decision by the Attorney General to invoke
the provisions of [§ 1225(b)(1)],
(iii) the application of [§ 1225(b)(1)] to
individual aliens, including the [credible fear]
determination made under section
1225(b)(1)(B) . . . , or
SINGH V. BARR 11
(iv) except as provided in subsection (e),
procedures and policies adopted by the
Attorney General to implement the provisions
of section 1225(b)(1) . . . .
8 U.S.C. § 1252(a)(2)(A)(i)–(iv). Judicial review of an
expedited removal order, including the merits of a credible
fear determination, is thus expressly prohibited by
§ 1252(a)(2)(A)(iii). See Pena, 815 F.3d at 455 (court of
appeals lacked jurisdiction to review procedural challenge to
expedited removal proceedings); Garcia de Rincon v. Dep’t
of Homeland Sec., 539 F.3d 1133, 1139 (9th Cir. 2008) (court
of appeals lacked jurisdiction to hear collateral attack on
underlying expedited removal order in reinstatement
proceedings); see also Castro v. U.S. Dep’t of Homeland Sec.,
835 F.3d 422, 431–32 (3d Cir. 2016) (collecting cases).
Petitioners do not disagree with our reading of
§ 1252(a)(2)(A)(iii). Petitioners repeatedly stress that they
are not asking us to review the merits of the IJs’ credible fear
determinations. Instead, Petitioners ask us to exercise
jurisdiction to review the IJs’ denials of motions to reopen on
the grounds that the IJs misconstrued their authority to do so
under 8 C.F.R. § 1208.30(g)(2)(iv)(A).3 This we cannot do.
3
That regulation provides:
If the immigration judge concurs with the determination
of the asylum officer that the alien does not have a
credible fear of persecution or torture, the case shall be
returned to the [USCIS] for removal of the alien. The
immigration judge’s decision is final and may not be
appealed. The [USCIS], however, may reconsider a
negative credible fear finding that has been concurred
upon by an immigration judge after providing notice of
12 SINGH V. BARR
We have held that “where Congress explicitly withdraws our
jurisdiction to review a final order of deportation, our
authority to review motions to reconsider or to reopen
deportation proceedings is thereby likewise withdrawn.”
Sarmadi v. INS, 121 F.3d 1319, 1322 (9th Cir. 1997); see also
Alcala v. Holder, 563 F.3d 1009, 1014 (9th Cir. 2009) (“[O]ur
jurisdiction over a motion to reopen is derivative of our
jurisdiction over the underlying order of removal.”).
We can characterize Petitioners’ request as one either
“arising from or relating to the implementation or operation
of” an expedited removal order, 8 U.S.C. § 1252(a)(2)(A)(i),
or seeking review of “procedures and policies adopted by the
Attorney General,” id. § 1252(a)(2)(A)(iv). Either way, the
review Petitioners seek is still outside of our jurisdiction
“except as provided in [§ 1252(e)].” See Thuraissigiam v.
U.S. Dep’t of Homeland Sec., 917 F.3d 1097, 1119 (9th Cir.
2019) (“Section 1252(a)(2)(A)(i) . . . clearly bars claims
relating to procedural error.”), rev’d on other grounds, 140 S.
Ct. 1959 (2020). Section 1252(e) does not permit us to
review the Petitioners’ requests on a petition for review from
an IJ’s denial. Though § 1252(e) authorizes some judicial
review of expedited removal orders and policies and
procedures, it limits review to specific challenges and venues.
Section 1252(e)(2) permits habeas corpus proceedings limited
to inquiring “whether the petitioner is an alien,” “whether
petitioner was ordered removed under” § 1252(b)(1), and
whether petitioner “can prove by a preponderance of the
evidence that the petitioner is an alien lawfully admitted for
permanent residence, has been admitted as a refugee . . . , or
its reconsideration to the immigration judge.
8 C.F.R. § 1208.30(g)(2)(iv)(A).
SINGH V. BARR 13
has been granted asylum . . . .” See 8 U.S.C. § 1252(e)(2);
Thuraissigiam, 917 F.3d at 1103–04. Petitioners do not bring
challenges on any of these bases.
Alternatively, a challenge to the validity of the regulations
implementing § 1225(b)(1) may be reviewed for
constitutionality, consistency with § 1225, or other violations
of federal law. See 8 U.S.C. § 1252(e)(3). However, such
actions seeking review of regulations must be filed no later
than sixty days after the challenged regulation is “first
implemented” and must be filed in the United States District
Court for the District of Columbia. See id. §§ 1252(e)(3)(A),
(B). Section 1252(e) does not grant us either jurisdiction or
venue to review such petitions. See Garcia de Rincon,
539 F.3d at 1139 (“[De Rincon’s challenge] does not contest
her expedited removal order on any of the enumerated
permissible grounds in § 1252(e)—this court therefore has no
jurisdiction to hear it.”).
Petitioners point us to Ayala v. Sessions, 855 F.3d 1012
(9th Cir. 2017), and Bartolome v. Sessions, 904 F.3d 803 (9th
Cir. 2018), but those decisions are not to the contrary. Both
of these cases involved review of a reasonable fear
determination in the context of a reinstatement of a prior
removal order under 8 U.S.C. § 1231(a)(5), rather than a
credible fear determination under § 1225(b)(1). In Ayala we
concluded that “we have jurisdiction over petitions for review
of reasonable fear determinations made in connection with
the reinstatement of expedited removal orders.” 855 F.3d at
1018. We acknowledged our prior decision in Garcia de
Rincon, in which we held that we lack jurisdiction to review
a collateral attack on the underlying expedited removal order
during reinstatement proceedings, Garcia de Rincon,
539 F.3d at 1138, but we distinguished a reasonable fear
14 SINGH V. BARR
determination arising from a reinstatement proceeding from
an attack on an “original underlying expedited removal
proceeding[].” Ayala, 855 F.3d at 1018. We concluded that
“Garcia de Rincon [was] inapplicable.” Id. Because we
found that “[n]othing in 8 U.S.C. § 1252 prevents us from
exercising jurisdiction to review the accuracy of the . . .
reasonable fear determination” in connection with the
reinstatement order under § 1231(a)(5), see id., we were free
to reach the question whether “[t]he IJ abused his discretion
in denying Ayala’s motion to reopen and reconsider,” id. at
1020. See also Bartolome, 904 F.3d at 815; Alcala, 563 F.3d
at 1014; Medina-Morales v. Ashcroft, 371 F.3d 520, 528 (9th
Cir. 2004).
Petitioners, at oral argument, also pointed us to 8 U.S.C.
§ 1252(a)(2)(D) as authority permitting the review of legal
and constitutional questions. See also Ayala, 855 F.3d
at 1017–18. That subparagraph provides:
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 raised upon a petition for review filed
with an appropriate court of appeals in
accordance with this section.
8 U.S.C. § 1252(a)(2)(D). We have read Subparagraph (D)
to “re-vest[] the circuit courts with jurisdiction to hear
‘constitutional claims or questions of law’ that might
otherwise be barred . . . .” Garcia de Rincon, 539 F.3d at
1137. The re-vestment clause does not apply to Petitioners’
claims, however. By its own terms, Subparagraph (D) does
SINGH V. BARR 15
not re-vest jurisdiction in our court over legal questions
whose review is prohibited by Subparagraph (A). 8 U.S.C.
§ 1252(a)(2)(D). Subparagraphs (A), (B), and (C) each
establish separate and alternative prohibitions on review of
certain matters. Subparagraph (D) then provides that the
prohibitions “in subparagraph (B) or (C), or in any other
provision of [the INA] (other than this section)” shall not
preclude review of legal or constitutional questions on a
petition for review. Subparagraph (D), therefore, only
overrides prohibitions contained in (1) a provision of the INA
other than § 1252, or (2) either § 1252(a)(2)(B) or (C). It
plainly does not override the prohibition in Subparagraph (A)
because it is not in a “provision of [the INA] (other than this
section),” and it is not “subparagraph (B) or (C).” Thus, even
a decision that might appear to fall within Subparagraphs (B)
or (C) is not reviewable under § 1252(a)(2)(D) if it is subject
to a separate prohibition of Subparagraph (A). To say
otherwise, would not be a credible reading of the statute. See
Kucana, 558 U.S. at 252 (“‘[M]any provisions of IIRIRA
[we]re aimed at protecting [from court review exercises of]
the Executive’s discretion.’”) (alterations in original) (quoting
Reno v. American Arab Anti-Discrimination Comm., 525 U.S.
471, 486 (1999)). The re-vesting provision of Subparagraph
(D) does not refer to the non-reviewability provisions of
Subparagraph (A), and it is that provision that deprives us of
jurisdiction to review the IJs’ refusals to consider Petitioners’
motions to reopen.4
4
Petitioners briefly raised a Suspension Clause challenge at oral
argument. But the Supreme Court foreclosed this argument in Department
of Homeland Security v. Thuraissigiam, 140 S. Ct. 1959 (2020). See id.
at 1969 (The writ of habeas corpus “simply provided a means of
contesting the lawfulness of restraint and securing release.”). The Court
rejected the contention that the writ required the ability “to obtain
administrative or judicial review leading to” “authorization for an alien
16 SINGH V. BARR
IV. CONCLUSION
Read together, §§ 1252(a)(2)(A), (D) and 1252(e) provide
clear and convincing evidence that Congress intended to
deprive circuit courts of appeals of jurisdiction to review
expedited removal orders and related matters affecting those
orders, including underlying negative credible fear
determinations and rulings on the regulations implementing
the expedited removal statute. We are without jurisdiction to
review the petitions for review of the denials of Petitioners’
motions to reopen and therefore dismiss.
DISMISSED.
[stopped at the border] to remain in a country other than his own.” Id.
at 1971–81.