FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTHONY GUERRIER, No. 20-70115
Petitioner,
Agency No.
v. A213-193-324
MERRICK B. GARLAND, Attorney
General, ORDER AND
Respondent. AMENDED
OPINION
On Petition for Review of an Order of an
Immigration Judge
Argued and Submitted July 28, 2021
Pasadena, California
Filed August 16, 2021
Amended November 9, 2021
Before: Milan D. Smith, Jr. and John B. Owens, Circuit
Judges, and Eduardo C. Robreno, * District Judge.
Order;
Opinion by Judge Robreno
*
The Honorable Eduardo C. Robreno, United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.
2 GUERRIER V. GARLAND
SUMMARY **
Immigration
The panel filed (1) an order amending its opinion,
denying a petition for panel rehearing, and denying on behalf
of the court a petition for rehearing en banc; and (2) an
amended opinion dismissing for lack of jurisdiction Anthony
Guerrier’s petition for review of an immigration judge’s
negative credible fear determination which resulted in an
order for his expedited removal.
Under 8 U.S.C. § 1252(a)(2)(A), no court shall have
jurisdiction to review an expedited removal order except as
provided in subsection (e) of section 1252. In turn,
subsection (e) limits judicial review to three issues, raised in
habeas corpus proceedings: (1) whether the petitioner is an
alien; (2) whether the petitioner was ordered removed under
an expedited removal order; and (3) whether the petitioner
can prove that he or she has lawful status in the United States
as an asylee, refugee, or permanent resident. Applying these
provisions, this court held in Pena v. Lynch, 815 F.3d 452
(9th Cir. 2016), that because no claim listed in the statutory
exceptions was raised, it lacked jurisdiction to review any
constitutional or statutory claims related to the expedited
removal order. The court noted, however, that both the
Supreme Court and this Circuit had suggested that a litigant
may be unconstitutionally denied a forum when there is
absolutely no avenue for judicial review of a colorable claim
of constitutional deprivation. Pena argued that the
immigration judge’s failure to elicit a knowing and voluntary
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
GUERRIER V. GARLAND 3
waiver of Pena’s right to counsel violated his due process
rights. Although in Pena the court concluded that the
petitioner had not raised a colorable constitutional claim
because the immigration judge had elicited a voluntary
waiver of counsel, it wrote that “the jurisdiction-stripping
provisions of the statute retain some avenues of judicial
review, limited though they may be.”
Guerrier argued that unlike Pena, where the immigration
judge elicited a voluntary waiver of counsel during the
petitioner’s credible fear interview, Guerrier continually
expressed a desire for counsel during his credible fear
interview, and the Government failed to provide vital
information in his native language. Guerrier argued that this
failure violated his right to due process, qualifying him for
the “colorable constitutional claim” exception to the general
rule that the court lacks jurisdiction to hear challenges to
expedited orders of removal.
As an initial matter, the panel concluded that Guerrier
raised a colorable constitutional claim that the Government
deprived him of his statutory right to counsel at his credible
fear hearing. However, the panel held that the Supreme
Court’s decision in DHS v. Thuraissigiam, 140 S. Ct. 1959
(2020), abrogated the “colorable constitutional claim”
exception to the limits Congress placed on the court’s
jurisdiction to review challenges to expedited removal
orders under the facts of this case.
The panel explained that in Thuraissigiam, the Supreme
Court concluded that a noncitizen who is detained shortly
after unlawful entry cannot be said to have “effected an
entry” into the country and therefore has only those rights
regarding admission that Congress has provided by statute.
In Thuraissigiam’s case, the Supreme Court explained that
Congress provided the right to a determination whether he
4 GUERRIER V. GARLAND
had a significant possibility of establishing eligibility for
asylum, and he was given that right. Moreover, because the
Due Process Clause provides nothing more, the Supreme
Court concluded that it did not require review of that
determination or how it was made. Thus, the Supreme Court
held that the jurisdictional provisions as applied to
Thuraissigiam’s case, did not violate due process under the
facts of the case. Likewise, the panel concluded that
Thuraissigiam precluded this court from recognizing a
“colorable constitutional claim” exception to this case, in
which Guerrier maintained that he was apprehended shortly
after entering the United States.
The panel rejected Guerrier’s attempt to distinguish
Thuraissigiam on the basis that Thuraissigiam filed a habeas
petition and Guerrier did not. The panel explained that the
difference in the procedural posture did not alter its analysis
here, because in concluding that Thuraissigiam’s due
process rights were not violated, the Supreme Court
emphasized that the due process rights of noncitizens who
have not “effected an entry” into the country are coextensive
with the statutory rights Congress provides. Bound by this
precedent, the panel held that Thuraissigiam abrogated any
“colorable constitutional claims” exception to the limits
8 U.S.C. § 1252(a)(2)(A) placed on this court’s jurisdiction
to review Guerrier’s petition.
GUERRIER V. GARLAND 5
COUNSEL
Rajan O. Dhungana (argued), Federal Practice Group, Las
Vegas, Nevada, for Petitioner.
Neelam Ihsanullah (argued), Trial Attorney; Anthony C.
Payne, Assistant Director; Brian M. Boynton, Acting
Assistant Attorney General; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.
Noor Zafar, Lee Gelernt, and Anand Balakrishnan,
American Civil Liberties Union Foundation, Immigrants’
Rights Project, New York, New York; Cody Wofsy,
American Civil Liberties Union Foundation, Immigrants’
Rights Project, San Francisco, California; for Amicus Curiae
American Civil Liberties Union.
Brian C. Baran, Reichman Jorgensen Lehman & Feldberg
LLP, Washington, D.C.; Kate Falkenstien, Reichman
Jorgensen Lehman & Feldberg LLP, Redwood Shores,
California; for Amicus Curiae Hever Alberto Mendoza
Linares.
ORDER
The opinion filed August 16, 2021 (Docket Entry
No. 45), and reported at 8 F.4th 1066, is amended by the
Amended Opinion filed in its place concurrently with this
order.
With these amendments, the full court has been advised
of the petition for rehearing en banc, and no judge of the
court has requested a vote on it. Fed. R. App. P. 35. The
6 GUERRIER V. GARLAND
panel unanimously votes to deny the petition for panel
rehearing. Judge M. Smith and Judge Owens vote to deny
the petition for rehearing en banc, and Judge Robreno so
recommends.
Accordingly, the petition for panel rehearing and the
petition for rehearing en banc are DENIED. No further
petitions for rehearing will be accepted.
OPINION
ROBRENO, District Judge:
Petitioner Anthony Guerrier seeks review of an
immigration judge’s negative credible fear determination,
which resulted in an order for his expedited removal. He
acknowledges that we typically lack jurisdiction to review
direct challenges to expedited removal orders but argues we
have jurisdiction to review his petition because he raises a
colorable constitutional claim.
Although our prior opinions have suggested that such
claims may form a basis for our jurisdiction, the Supreme
Court’s decision in DHS v. Thuraissigiam, 140 S. Ct. 1959,
1964 (2020), abrogated the “colorable constitutional claim”
exception to the limits Congress placed on our jurisdiction
to review challenges to expedited removal orders under the
facts of this case. Accordingly, we dismiss the petition for
review for lack of jurisdiction.
GUERRIER V. GARLAND 7
I.
A.
Under the applicable statutory provisions, noncitizens
who lack valid entry documents at the time of their arrival to
the United States are deemed “removable.” See DHS v.
Thuraissigiam, 140 S. Ct. 1959, 1964 (2020) (quoting
8 U.S.C. §§ 1182, 1229a(e)(2)(A)). The standard removal
process involves three levels of review: an evidentiary
hearing before an immigration judge, an appeal to the Board
of Immigration Appeals, and review in a federal court of
appeals. Id. (citing §§ 1229a(c)(5), 1252(a)).
However, Congress has provided expedited removal
procedures for certain noncitizens, including those who
(1) are “inadmissible because [they] lack[] a valid entry
document,” (2) have not “been physically present in the
United States continuously for the 2-year period
immediately prior to the date of the determination of
inadmissibility,” and (3) are “among those whom the
Secretary of Homeland Security has designated for
expedited removal.” Id. at 1964–65 (quoting
§ 1225(b)(1)(A)(i), (iii)(I)–(II)). “Once ‘an immigration
officer determines’ that a designated applicant ‘is
inadmissible,’ ‘the officer [must] order the alien removed
from the United States without further hearing or review.’”
Id. at 1965 (alteration in original) (quoting
§ 1225(b)(1)(A)(i)).
“Applicants can avoid expedited removal by claiming
asylum. If an applicant ‘indicates either an intention to apply
for asylum’ or ‘a fear of persecution,’ the immigration
officer ‘shall refer the alien for an interview by an asylum
officer.’” Id. (quoting § 1225(b)(1)(A)(i)–(ii)). If the asylum
officer finds that the applicant has a credible fear of
8 GUERRIER V. GARLAND
persecution, “the applicant will receive ‘full consideration’
of his asylum claim in a standard removal hearing.” Id.
(quoting 8 C.F.R. § 208.30(f)) (citing 8 U.S.C.
§ 1225(b)(1)(B)(ii)).
If the officer instead determines that the applicant lacks
a credible fear, a supervisor reviews the determination. Id.
(citing 8 C.F.R. § 208.30(e)(8)). If the supervisor agrees with
the officer, “the applicant may appeal to an immigration
judge, who can take further evidence and ‘shall make a de
novo determination.’” Id. (quoting 8 C.F.R. § 1003.42(c),
(d)(1)) (citing 8 U.S.C. § 1225(b)(1)(B)(iii)(III)).
If the immigration judge agrees with the asylum officer
that the noncitizen does not have a credible fear of
persecution or torture, “the case shall be returned to DHS for
removal of the alien. The immigration judge’s decision is
final and may not be appealed.” 8 C.F.R.
§ 1208.30(g)(2)(iv)(A) (2021); see also 8 U.S.C.
§ 1225(b)(1)(B)(iii)(I) (“Subject to [review by an
immigration judge upon request], if the officer determines
that an alien does not have a credible fear of persecution, the
officer shall order the alien removed from the United States
without further hearing or review.”). However, “the
Executive always has discretion not to remove.”
Thuraissigiam, 140 S. Ct. at 1983 n.28 (citing Reno v. Am.-
Arab Anti-Discrimination Comm., 525 U.S. 471, 483–84
(1999)); see also 8 C.F.R. § 208.30(g)(2)(i) (2021)
(providing that “DHS . . . may reconsider a negative credible
fear finding that has been concurred upon by an immigration
judge”).
In sum, a noncitizen subject to expedited removal “has
an opportunity at three levels to obtain an asylum hearing,
and the applicant will obtain one unless the asylum officer,
a supervisor, and an immigration judge all find that the
GUERRIER V. GARLAND 9
applicant has not asserted a credible fear.” Thuraissigiam,
140 S. Ct. at 1965–66.
B.
Guerrier is a citizen of Haiti. His primary language is
Creole, and he does not speak English. Guerrier entered the
United States unlawfully in November 2019 and was
apprehended by immigration authorities. 1 He was issued an
expedited removal order. He expressed fear that he would be
persecuted if he were to return to Haiti and was consequently
referred to an asylum officer for a credible fear interview.
During his credible fear interview, the asylum officer
asked Guerrier whether he had an attorney or consultant. The
following exchange occurred:
GUERRIER: For now, I do not have a
lawyer, but I would like to have a lawyer help
me.
OFFICER: An attorney is not required for
this interview. Do you feel comfortable
proceeding today without an attorney?
GUERRIER: If it’s questions about my life, I
can answer; but if it’s complicated questions,
then I don’t know.
OFFICER: This interview is about your fear
returning to Haiti. So I will be asking you
1
Petitioner did not set forth when he was specifically apprehended,
but maintains that he was apprehended “shortly thereafter” entering the
United States. The Government does not contest this.
10 GUERRIER V. GARLAND
several questions about why you are afraid to
return to Haiti. It is up to you if you would
like to proceed w[ith] an attorney.
GUERRIER: I don’t have a problem.
OFFICER: So you wish to proceed today
w[ithout] an attorney?
GUERRIER: Yes, if you want to give me an
attorney.
OFFICER: No sir, I do not have the authority
to give you an attorney. This interview is
about your fear returning to Haiti. So I will
be asking you several questions about why
you are afraid to return to Haiti. It is up to you
if you would like to proceed w[ith] an
attorney.
GUERRIER: Ok, I will answer your
questions.
Guerrier proceeded without counsel. At the end of the
interview, he asked for a list of lawyers. The asylum officer
found that Guerrier failed to establish a credible fear of
persecution.
Guerrier requested review by an immigration judge.
Guerrier appeared at the credible fear review hearing without
counsel. At the beginning of the hearing, the immigration
judge asked Guerrier if he had any questions. Guerrier stated
that he had been told he was going to be given a list of
lawyers but had not received such a list. The immigration
judge informed Guerrier that he was not entitled to
GUERRIER V. GARLAND 11
representation and that he had already received the promised
list of attorneys as an attachment to the paperwork for the
credible fear review. Guerrier responded, “Maybe I did not
see it. I don’t know if it’s the fact that I don’t speak English
that I don’t understand it.” The immigration judge stated,
“Well, sir, according to the [c]ourt’s records, the list was
provided to you, and that was several days ago. Now, as I
said, you have no right to be represented in credible fear
review proceedings. There’s no right to a lawyer.” Guerrier
stated, “Well, maybe it’s the fact that I don’t speak English,
I don’t understand what’s going on, and that’s the reason
why I did not start looking for a lawyer for my case.” The
immigration judge responded, “Well, sir, that’s not
something that I can control.” The immigration judge
proceeded with the hearing, ultimately agreeing with the
asylum officer’s negative credible fear decision.
The instant petition for review followed. The
Government filed a motion to dismiss the action for lack of
subject matter jurisdiction, and Guerrier filed a motion for a
stay of removal. We denied the motion to dismiss without
prejudice to renewing the arguments and granted the stay of
removal.
II.
“We determine our own jurisdiction de novo.” Pena v.
Lynch, 815 F.3d 452, 455 (9th Cir. 2016) (citing Bolanos v.
Holder, 734 F.3d 875, 876 (9th Cir. 2013)). “We also review
constitutional claims de novo.” Id. (citing Coronado v.
Holder, 759 F.3d 977, 982 (9th Cir. 2014)).
12 GUERRIER V. GARLAND
III.
A.
Generally, we have jurisdiction to review final orders of
removal. See 8 U.S.C. § 1252. However, through the Illegal
Immigration Reform and Immigrant Responsibility Act of
1996 (“IIRIRA”), Congress strictly cabined judicial review
of expedited removal orders. The statute “provides that ‘no
court shall have jurisdiction to review’ an expedited removal
order except as provided in subsection (e)” of section 1252.
Alvarado-Herrera v. Garland, 993 F.3d 1187, 1192 (9th Cir.
2021) (quoting § 1252(a)(2)(A)).
In turn, subsection (e) limits judicial review to three
issues: “‘whether the petitioner is an alien’; ‘whether the
petitioner was ordered removed’ under an expedited removal
order; and whether the petitioner can prove that he or she has
lawful status in the United States as an asylee, refugee, or
permanent resident.” Id. (quoting 8 U.S.C. § 1252(e)(2))
(citing DHS v. Thuraissigiam, 140 S. Ct. 1959, 1963–64
(2020)). These issues “must be raised in habeas corpus
proceedings.” Id.
We have recognized that although another provision of
the IIRIRA—section 1252(a)(2)(D)—“re-vests courts with
jurisdiction to review constitutional claims and questions of
law otherwise barred” by the statute, the re-vesting provision
“does not apply to the jurisdictional limitations codified
elsewhere” in the section, including the aforementioned
limitation in subparagraph (A) circumscribing judicial
review of expedited removal orders. Garcia de Rincon v.
DHS, 539 F.3d 1133, 1138 (9th Cir. 2008).
Applying these statutory provisions, we held in Pena v.
Lynch, 815 F.3d 452, 457 (9th Cir. 2016), that this court
GUERRIER V. GARLAND 13
lacks jurisdiction to review a direct challenge to an expedited
removal order absent a statutory exception. More recently,
this court invoked this jurisdictional bar in Alvarado-
Herrera, which involved a petitioner who entered the United
States unlawfully in 2013 and was removed pursuant to an
expedited removal order. 993 F.3d at 1190. He re-entered the
United States unlawfully in 2017. Id. Rather than issue a new
expedited removal order, DHS reinstated the 2013 order. Id.;
see also 8 U.S.C. § 1231(a)(5) (authorizing reinstatement of
prior removal orders upon illegal re-entry).
Before this court, the petitioner in Alvarado-Herrera
argued DHS could not reinstate the prior order because the
order failed to comply with two requirements imposed by the
regulation governing expedited removal. 993 F.3d at 1191
(citing 8 C.F.R. § 235.3). Specifically, he contended the
order was not “reviewed and approved by the appropriate
supervisor” and that it was not clear whether the petitioner
“sign[ed] the reverse of [Form I-860] acknowledging
receipt.” Id. at 1191–92 (first quoting § 235.3(b)(7); and then
quoting § 235.3(b)(2)(i)).
The court concluded that it lacked jurisdiction to
entertain these arguments. Id. It acknowledged that it does
have jurisdiction to entertain collateral attacks on the validity
of a removal order being reinstated where “the petitioner can
show that a ‘gross miscarriage of justice’ occurred during the
earlier removal proceedings.” Id. (quoting Garcia de Rincon,
539 F.3d at 1137–38). But it noted that “even that narrow
sliver of jurisdiction is foreclosed when the underlying order
is . . . an expedited removal order.” Id. (citing Garcia de
Rincon, 539 F.3d at 1138–39). The court reached this
conclusion by noting the aforementioned limits 8 U.S.C.
§ 1252(e)(2) places on judicial review of expedited removal
orders and concluding that the petitioner’s challenges “d[id]
14 GUERRIER V. GARLAND
not fall within any of the categories of reviewable issues, and
this is not a habeas corpus proceeding in any event.” Id.
Accordingly, the court dismissed that portion of the petition
for lack of jurisdiction. Id. (citing Pena, 815 F.3d at 455–
56).
Turning to the instant petition, Pena’s holding that the
court lacks jurisdiction to review a direct challenge to an
expedited removal order would seem to foreclose Guerrier’s
request for review of an immigration judge’s negative
credible fear determination. See 815 F.3d at 455. However,
Guerrier argues that because he raises a “colorable
constitutional claim,” he qualifies for an exception to the
general rule that we lack jurisdiction to review challenges to
expedited removal orders. We turn next to this issue.
B.
The issue of a possible “colorable constitutional claim”
exception stems from our opinion in Pena v. Lynch, 815 F.3d
452, 456 (9th Cir. 2016), which involved a procedural due
process challenge to the petitioner’s expedited removal
proceeding. After the asylum officer concluded that the
petitioner had not shown a credible fear of persecution, the
petitioner requested review of the officer’s decision by an
immigration judge. Id. at 454. In response, the petitioner
received a form titled “Notice of Referral to Immigration
Judge,” which provided, in part: “You may be represented in
this proceeding, at no expense to the government, by an
attorney or other individual authorized and qualified to
represent persons before an Immigration Court. If you wish
to be so represented, your attorney or representative should
appear with you at this hearing. . . .” Id.
The petitioner appeared before the immigration judge
without an attorney. Id. The immigration judge asked the
GUERRIER V. GARLAND 15
petitioner at the beginning of the hearing whether he
intended to have an attorney or anyone else be present to
represent or assist him. Id. The petitioner responded, “No,
no, that’s fine.” Id. At the conclusion of the hearing, the
immigration judge affirmed the asylum officer’s
determination and informed the petitioner that the decision
was final and could not be appealed. Id. Notwithstanding this
instruction, the petitioner appealed to the Board of
Immigration Appeals, which dismissed the appeal for lack
of jurisdiction. Id. at 454–55 (first citing 8 U.S.C.
§ 1225(b)(1)(C); and then citing 8 C.F.R.
§ 1208.30(g)(2)(iv)(A)). The petitioner then filed a petition
for review with this court, arguing that the IJ’s “failure to
elicit a knowing and voluntary waiver of Pena’s right to
counsel violated his due process rights.” Id. at 455.
We dismissed the petition, concluding that “because no
claim listed in the statutory exceptions was raised,” we
“lack[ed] jurisdiction to review any constitutional or
statutory claims related to the underlying removal order.” Id.
at 456 (quoting Garcia de Rincon, 539 F.3d at 1139). We
noted, however, that “[b]oth the Supreme Court and this
Circuit have suggested that a litigant may be
unconstitutionally denied a forum when there is absolutely
no avenue for judicial review of a colorable claim of
constitutional deprivation.” Id. (first citing Webster v. Doe,
486 U.S. 592, 603 (1988); and then citing Flores-
Miramontes v. INS, 212 F.3d 1133, 1136 (9th Cir. 2000)).
But we concluded that the petitioner in Pena “d[id] not raise
a colorable constitutional claim, since the Immigration Judge
elicited a voluntary waiver of counsel,” and that “the
jurisdiction-stripping provisions of the statute retain some
16 GUERRIER V. GARLAND
avenues of judicial review, limited though they may be.” Id.
at 456–57 (citing Flores-Miramontes, 212 F.3d at 1136). 2
C.
Guerrier argues that unlike in Pena, where the
immigration judge elicited a voluntary waiver of counsel
during the petitioner’s credible fear interview, Guerrier
“continually expressed a desire for counsel during his
credible fear interview, and the Government failed to
provide vital information in [his] native language.” He
argues this failure violated his right to due process,
qualifying him for the “colorable constitutional claim”
exception to the general rule that we lack jurisdiction to hear
challenges to expedited orders of removal.
Although Guerrier argues the Government deprived him
of a constitutional right to counsel, in the expedited removal
context, a petitioner’s due process rights are coextensive
with the statutory rights Congress provides. See
Thuraissigiam, 140 S. Ct. at 1982. With respect to
representation, the expedited removal statute provides that a
noncitizen who is eligible for an asylum interview “may
consult with a person or persons of [his or her] choosing
prior to the interview or any review thereof, according to
2
Subsequent non-precedential opinions from this court involving
review of expedited removal orders noted this “colorable constitutional
claim” exception. See, e.g., Cervantes v. Barr, 769 F. App’x 456, 456
(9th Cir. 2019) (dismissing petition for lack of jurisdiction and noting
that the court “do[es] have jurisdiction to review ‘a colorable
constitutional claim,’ see Pena, 815 F.3d at 456, but Petitioners do not
raise a colorable constitutional claim here”); Sombir v. Barr, No. 18-
73502, 2019 U.S. App. LEXIS 16258, at *1 (9th Cir. May 30, 2019)
(dismissing petition for lack of jurisdiction and noting that the petitioner
“d[id] not raise a colorable constitutional claim” (citing Pena, 815 F.3d
at 456)).
GUERRIER V. GARLAND 17
regulations prescribed by the Attorney General,” so long as
the consultation is “at no expense to the Government” and
does not “unreasonably delay the process.” 8 U.S.C.
§ 1225(b)(1)(B)(iv); see also 8 C.F.R. § 1003.42(c) (2021).
On the record before the court, Guerrier appears to raise
the sort of “colorable constitutional claim” Pena envisions—
i.e., a claim that the Government deprived him of the rights
Congress afforded. Pena, 815 F.3d at 456. He alleges the
Government deprived him of his statutory right to consult
with a person of his choosing because it did not provide
information about this right in his native language. Guerrier
also contends the immigration judge should have postponed
the credible fear review hearing after he informed the judge
that he had not had the opportunity to consult with a person
of his choosing. Accordingly, we conclude that Guerrier
raises a colorable constitutional claim.
However, we nonetheless lack jurisdiction to review his
petition because the Supreme Court’s decision in
Thuraissigiam, 140 S. Ct. at 1982–83, abrogated the
“colorable constitutional claim” exception to the statutory
limits on our jurisdiction under the facts of this case.
D.
Thuraissigiam involved a habeas petition filed by
Vijayakumar Thuraissigiam, a Sri Lankan national who
crossed the southern border to the United States and was
detained for expedited removal within 25 yards of the
border. 140 S. Ct. at 1967. He sought asylum, claiming he
feared returning to Sri Lanka “because a group of men had
once abducted and severely beaten him,” although “he did
not know who the men were, why they had assaulted him, or
whether Sri Lankan authorities would protect him in the
future.” Id. The asylum officer determined Thuraissigiam
18 GUERRIER V. GARLAND
lacked credible fear of persecution, the supervising officer
agreed, and an immigration judge affirmed. Id. at 1968.
Thuraissigiam then filed a federal habeas petition. Id. He
argued “the immigration officials deprived him of ‘a
meaningful opportunity to establish his claims’ and violated
credible-fear procedures by failing to probe past his denial
of the facts necessary for asylum.” Id. He also alleged the
officials “failed to apply the ‘correct standard’ to his
claims—the ‘significant possibility’ standard—despite its
repeated appearance in the records of their decisions.” Id.
The district court dismissed Thuraissigiam’s petition,
“holding that §§ 1252(a)(2) and (e)(2) and clear Ninth
Circuit case law foreclosed review of the negative credible-
fear determination that resulted in [his] expedited removal
order.” Id. (citing Thuraissigiam v. DHS, 287 F. Supp. 3d
1077, 1081 (S.D. Cal. 2018), rev’d, 917 F.3d 1097, 1119 (9th
Cir. 2019), rev’d, 140 S. Ct. at 1983). The district court also
rejected Thuraissigiam’s argument that the jurisdictional
limitations of section 1252(e) violate the Suspension Clause.
Id.
We reversed, holding that section 1252(e) violates the
Suspension Clause. 917 F.3d at 1100 (“Although
§ 1252(e)(2) does not authorize jurisdiction over the claims
in Thuraissigiam’s petition, the Suspension Clause, U.S.
Const. art. I, § 9, cl. 2, requires that Thuraissigiam have a
‘meaningful opportunity to demonstrate that he is being held
pursuant to “the erroneous application or interpretation” of
relevant law.”’ (quoting Boumediene v. Bush, 553 U.S. 723,
779 (2008))). In a footnote, we also explained that we
“disagree[d] with the government’s contention . . . that a
person like Thuraissigiam lacks all procedural due process
rights.” Id. at 1111 n.15. We further noted as follows: “[W]e
have held that a noncitizen situated almost exactly like
GUERRIER V. GARLAND 19
Thuraissigiam had a constitutional right ‘to expedited
removal proceedings that conformed to the dictates of due
process.’” Id. (quoting United States v. Raya-Vaca, 771 F.3d
1195, 1203 (9th Cir. 2014)).
The Supreme Court reversed. Noting that
Thuraissigiam’s requested relief “f[ell] outside the scope of
the writ as it was understood when the Constitution was
adopted,” the Court held that section 1252(e) does not
violate the Suspension Clause. 140 S. Ct. at 1971 (citing
Castro v. DHS, 835 F.3d 422, 450–51 (3d Cir. 2016)
(Hardiman, J., concurring dubitante)).
The Court then rejected Thuraissigiam’s argument that
the IIRIRA “violates his right to due process by precluding
judicial review of his allegedly flawed credible-fear
proceeding.” Id. at 1981. It described this court’s analysis of
Thuraissigiam’s due process argument as “contrary to more
than a century” of Supreme Court precedent recognizing that
“as to ‘foreigners who have never been naturalized, nor
acquired any domicil or residence within the United States,
nor even been admitted into the country pursuant to law,’
‘the decisions of executive or administrative officers, acting
within powers expressly conferred by Congress, are due
process of law.’” Id. at 1982 (quoting Nishimura Ekiu v.
United States, 142 U.S. 651, 660 (1892)).
Thuraissigiam argued this rule did not apply to him
“because he was not taken into custody the instant he
attempted to enter the country (as would have been the case
had he arrived at a lawful port of entry)” but rather
“succeeded in making it 25 yards” into the United States. Id.
The Supreme Court disagreed, concluding that this argument
“disregards the reason for our century-old rule regarding the
due process rights of an alien seeking initial entry,” which
rests on the following propositions:
20 GUERRIER V. GARLAND
“[T]he power to admit or exclude aliens is a
sovereign prerogative”; the Constitution
gives “the political department of the
government” plenary authority to decide
which aliens to admit; and a concomitant of
that power is the power to set the procedures
to be followed in determining whether an
alien should be admitted.
Id. (alteration in original) (citations omitted).
The Court concluded that a noncitizen who, like
Thuraissigiam, “is detained shortly after unlawful entry
cannot be said to have ‘effected an entry’” into the country
and therefore “has only those rights regarding admission that
Congress has provided by statute.” Id. at 1982–83 (quoting
Zadvydas v. Davis, 533 U.S. 678, 693 (2001)). In
Thuraissigiam’s case, “Congress provided the right to a
‘determin[ation]’ whether he had ‘a significant possibility’
of ‘establish[ing] eligibility for asylum,’ and he was given
that right.” Id. at 1983 (alterations in original) (quoting
8 U.S.C. § 1225(b)(1)(B)(ii), (v)). Because “the Due Process
Clause provides nothing more, it does not require review of
that determination or how it was made.” Id. Accordingly, the
Court concluded that section 1252(e)(2) did not violate due
process under the facts of the case. Id.
Here, Thuraissigiam’s conclusion that the Due Process
Clause does not require review of how the agency
determines whether a noncitizen subject to expedited
removal is eligible for asylum precludes this court from
reviewing Guerrier’s petition, despite his raising a colorable
constitutional claim. See id. at 1983. With respect to a
noncitizen’s right to review of an expedited removal order,
Congress has provided for a credible fear interview with an
GUERRIER V. GARLAND 21
asylum officer, review of the asylum officer’s determination
by a supervisor, and final review by an immigration judge.
Congress chose to strictly cabin this court’s jurisdiction to
review expedited removal orders. It provided exceptions to
that limitation under specific circumstances that do not apply
here. Thuraissigiam precludes this court from recognizing a
“colorable constitutional claim” exception to this case.
Guerrier’s attempts to distinguish Thuraissigiam from
the instant action are unavailing. His principal argument is
that the Supreme Court’s opinion does not bind this court
because Thuraissigiam filed a habeas petition and Guerrier
did not. It is true that Guerrier appealed directly to this court
from the expedited removal order rather than filing a habeas
petition in the district court. But this difference in the
procedural posture does not alter our analysis here. In
concluding that Thuraissigiam’s due process rights were not
violated, the Supreme Court emphasized that the due process
rights of noncitizens who have not “effected an entry” into
the country are coextensive with the statutory rights
Congress provides. Id. at 1982–83 (quoting Zadvydas, 533
U.S. at 693). Bound by this precedent, we hold that
Thuraissigiam abrogated any “colorable constitutional
claims” exception to the limits 8 U.S.C. § 1252(a)(2)(A)
places on this court’s jurisdiction to review Guerrier’s
petition.
We have considered Guerrier’s remaining arguments
and find them to be without merit. Because no basis exists
for this court’s jurisdiction, we must dismiss the petition for
review.
22 GUERRIER V. GARLAND
IV.
We lack jurisdiction to review Guerrier’s challenge to his
expedited removal proceedings. Accordingly, we dismiss
the petition for review.
PETITION FOR REVIEW DISMISSED.