Aguilar-Aguilar v. Napolitano

FILED
United States Court of Appeals
Tenth Circuit

December 3, 2012
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ANTONIO AGUILAR-AGUILAR,

Petitioner,
v. No. 11-9565
JANET NAPOLITANO, Secretary
of Homeland Security,

Respondent.

ON PETITION FOR REVIEW OF A DECISION
OF THE DEPARTMENT OF HOMELAND SECURITY

Jaime Jasso, Law Office of Jaime Jasso, Westlake Village, California, for Petitioner.

Stuart F. Delery, Acting Assistant Attorney General, Terri J. Scadron, Assistant
Director, Civil Division, Greg D. Mack, Senior Litigation Counsel, Office of
Immigration Litigation, United States Department of Justice, Washington D.C., for
Respondent.

Before MATHESON, Circuit Judge, PORFILIO, Senior Circuit Judge, and
BALDOCK, Circuit Judge. *

BALDOCK, Circuit Judge.

*
After examining the briefs and appellate record, this panel had determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
 In August 2010, the Department of Homeland Security (DHS) commenced

“regular” removal proceedings against Petitioner Antonio Aguilar-Aguilar, a citizen

of Mexico, pursuant to 8 U.S.C. § 1229a. In response to the Notice to Appear

(NTA), Petitioner conceded his removability under 8 U.S.C. § 1182(a)(6)(A)(i)

as “[a]n alien present in the United States without being admitted.” Petitioner

informed the immigration judge (IJ), however, that he was in the process of seeking

discretionary relief in the form of adjustment of status to lawful permanent resident

as provided for in 8 U.S.C. § 1255(i). Over Petitioner’s objection, DHS then moved

pursuant to 8 C.F.R. § 239.2(c) to dismiss the NTA as improvidently issued and

terminate Petitioner’s § 1229a proceedings without prejudice. As an alien without

lawful residency who had been convicted of an aggravated felony, Petitioner was

deportable under 8 U.S.C. § 1227(a)(2)(A)(iii), and thus amenable to “expedited”

removal proceedings under 8 U.S.C. § 1228(b). After the IJ granted DHS’s motion,

DHS commenced § 1228(b) proceedings against Petitioner and issued a Final

Administrative Removal Order (FARO) directing his removal to Mexico. Consistent

with § 1228(b)(5), the FARO found Petitioner “ineligible for any relief from removal

that [DHS] may grant in an exercise of discretion.” 1 His application for adjustment

of status thwarted, Petitioner now asks us to review a FARO he claims DHS issued

1
Section 1228(b)(5) 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).

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in violation of his Fifth Amendment right to procedural due process. Because the

FARO constitutes a “final order of removal,” we have jurisdiction to review it under

8 U.S.C. § 1252(a)(1). Subsection (a)(2)(D) specifically empowers us to review

Petitioner’s constitutional claim. For the reasons stated herein, we deny review.

I.

The regulations applicable to § 1228(b) proceedings subject Petitioner to

expedited removal if “clear, convincing, and unequivocal evidence” establishes

he (1) is an alien; (2) has not been lawfully admitted for residency; (3) has been

convicted of an aggravated felony (and that conviction is final); and (4) is deportable

under § 1227(a)(2)(A)(iii). 8 C.F.R. § 238.1(b)(1)(i)–(iv), (d)(1)–(2). Petitioner

does not contest these facts as found in the FARO, and thereby effectively concedes

he meets the criteria for removal under § 1228(b). Petitioner does not deny that he

entered and remained in the United States illegally. Nor does Petitioner deny that

California convicted him in 2009 of performing a lewd act upon a child under the age

of fourteen. This crime is defined in 8 U.S.C. §1101(a)(43)(A) as an aggravated

felony and renders Petitioner deportable under § 1227(a)(2)(A)(iii). Given these

undisputed facts, § 1228(c) tells us Petitioner “shall be conclusively presumed to

be deportable from the United States.” Moreover, Petitioner acknowledges DHS

had “unfettered discretion to commence removal proceedings against [him] either in

regular [§ 1229a] or expedited [§ 1228(b)] proceedings.” Pet. Reply Br. at 7.

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 So why are we here? To begin, Petitioner claims DHS exercised its discretion

once and for all when it instituted regular removal proceedings against him.

As a result [Petitioner] filed his application for [discretionary] relief as
authorized by statutes and regulations enabling him to seek relief from
removal despite the fact that he was deemed an aggravated felon. But
before a decision [was] made on the merits of [his] application for
relief, DHS arbitrarily elect[ed] to change the course of proceedings . . .
and . . . place [Petitioner] in expedited removal proceedings solely to
eliminate his statutory eligibility for relief from removal.

Id. Appearing before an IJ in El Paso, Texas by video teleconference from the

Otero County Detention Center in New Mexico, Petitioner objected to DHS’s motion

to dismiss the NTA and terminate his § 1229a proceedings because such action

would deprive him of a decision on his application for adjustment of status. The IJ

said true enough, but not enough:

The fact that the DHS initially (and likely erroneously) chose to file
[§ 1229a proceedings] in this case does not render [Petitioner] any less
amenable to the administrative removal provisions of [§1228(b)] and
does not prevent the DHS from requesting termination in order to
process [Petitioner] for removal pursuant to th[ese] provision[s]. The
court finds there is good cause in this case to terminate removal
proceedings and therefore will grant the DHS motion.

Supp. Admin. Rec. at 53. After the Board of Immigration Appeals (BIA) dismissed

Petitioner’s administrative appeal, he appealed to the Fifth Circuit Court of Appeals.

But the Fifth Circuit ruled it lacked jurisdiction absent a final order of removal

appealable pursuant to § 1252(a)(1). Aguilar-Aguilar v. Holder, No. 11-60715,

Order (5th Cir. Dec. 7, 2011) (per curiam) (unpublished).

4
 A week after the BIA dismissed Petitioner’s appeal, DHS instituted expedited

removal proceedings against him. A deportation officer (DO) served Petitioner

pursuant to 8 C.F.R. § 238.1(b)(2) with a Notice of Intent (NOI). As the charging

document, the NOI set forth DHS’s preliminary determinations consistent with

§ 238.1(b)(1)(i)–(iv), and informed Petitioner of DHS’s intent to issue a FARO

directing his removal to Mexico without a hearing before an IJ (or appeal to the

BIA). The NOI advised Petitioner of the procedural safeguards applicable to

§ 1228(b) proceedings. These safeguards, set forth in § 1228(b)(4) and 8 C.F.R.

§ 238.1(b)(2) & (c), included Petitioner’s right to retain counsel, to inspect the

evidence against him, to rebut the charges, and to request withholding of removal to

a particular country if fearful of persecution or torture. The NOI advised Petitioner

that to preserve these safeguards, he must respond to the charges or request an

extension of time within 10 days of service as required by § 238.1(c)(1).

On the first section of the certificate of service form attached to the NOI,

the DO marked a box indicating that he “explained and/or served this Notice of

Intent to the alien in the Spanish language.” Admin. Rec. at 2. The DO also marked

a box indicating “[t]he alien refused to acknowledge receipt of this document.” Id.

Inexplicably, however, the DO also marked a box on the second section of the form

indicating Petitioner “wish[ed] to contest and/or to request withholding of removal.”

Id. The DO marked another box indicating Petitioner would request withholding

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because he feared torture in a country unspecified. 2 The DO did not mark any of

the boxes in the second section indicating Petitioner wished to challenge DHS’s

preliminary determinations bearing upon his removability under § 1228(b), namely,

that he was an alien unlawfully present in the United States and an aggravated felon

deportable under § 1227(a)(2)(A)(iii). Nor did the DO mark any of the boxes in the

third section of the form indicating Petitioner admitted the charges and conceded

deportability.

Presumably because Petitioner refused to acknowledge receipt of the NOI, the

DO issued the FARO to Petitioner at the same time he served him with the NOI. The

FARO set forth DHS’s findings of fact and conclusions of law consistent with the

NOI’s preliminary determinations and ordered Petitioner removed. Petitioner did

not respond to the NOI, but instead timely appealed DHS’s issuance of the FARO

pursuant to § 1228(b)(3). 3 On appeal, Petitioner argues DHS deprived him of

2
Petitioner does not now, nor did he as part of his § 1229a proceedings, assert
he fears persecution or torture if returned to Mexico.
3
At this point, we need acknowledge the Eighth Circuit’s decision in Escoto-
Castillo v. Napolitano, 658 F.3d 864 (8th Cir. 2011). In that case, the court held it
lacked jurisdiction because petitioner’s failure to move to reopen his § 1228(b)
proceedings based on newly discovered evidence constituted a failure to exhaust the
administrative remedy provided for in 8 C.F.R. § 103.5(a)(1)(i). Id. at 866. To be
sure, 8 U.S.C. § 1252(d)(1) states a court “may review a final order of removal only
if . . . the alien has exhausted all administrative remedies available to the alien as of
right.” But the regulations applicable to § 1228(b) proceedings found at 8 C.F.R.
Part 238 do not provide for a motion to reopen (or reconsider). Nor, unlike the
Eighth Circuit, do we believe § 103.5(a)(1)(i) provides an administrative remedy
available “as of right” to an alien subject to a FARO. Section 103.5 appears in
(continued...)

6
procedural due process by denying him the right to object to the NOI:

Here, the [DO] did not observe [DHS’s] own rules and regulations when
[he] issued a [NOI] and a FARO on the same date, at the same time. In
so doing, the [DO] deprived [Petitioner] of all of the opportunities
guaranteed by the regulations, including among them most significantly,
the opportunity to present evidence to convince [DHS] to terminate
§ 1228(b) proceedings and allow him to obtain a decision on the merits
of his application[] for [discretionary] relief before [an IJ].

Pet. Reply. Br. at 10.

II.

We begin our discussion by summarily disposing of Petitioner’s ongoing

objection to the IJ’s grant of DHS’s motion to terminate his § 1229a proceedings.

3
(...continued)
8 C.F.R. Part 103, which addresses “Immigration Benefits.” Section 103.2 provides
that an alien seeking to remain in the United States may file a “benefit request” by
submitting the required form and fee. Section 103.3 addresses the denial of requests
“filed under § 103.2.” Section 103.5(a)(1)(i) provides that an “affected party” may
file a motion to “reopen the proceeding” or “reconsider the prior decision . . . within
30 days of the decision.” Subsection (a)(1)(iii)(B) requires that such motion be
submitted on a specified form and accompanied by a fee. In the event of a belated
motion to reopen, § 103.5(a)(1)(i) further provides DHS may extend the 30-day filing
period for good cause shown. That § 103.5(a)(1)(i) has no bearing on § 1228(b)
proceedings seems to us apparent for any number of reasons. Read in context, the
meaning of “affected party” in § 103.5(a)(1)(i) refers to an unsuccessful petitioner
under § 103.2. A motion to reopen or reconsider filed by a petitioner subject to a
FARO can hardly be labeled a “benefit request” pursuant to § 103.2 that must be
accompanied by a filing fee. Moreover, providing a petitioner subject to a FARO 30
days (or more) in which to file a motion to reopen or reconsider makes little sense
given the same petitioner has only 10 calendar days under 8 C.F.R. § 238.1(c)(1) to
object after personal service of a NOI and only 14 days under § 1228(b)(3) to appeal
before DHS may execute a FARO and remove him. The very purpose of § 1228(b)
is to provide DHS an efficient method by which to expeditiously remove an unlawful
alien previously convicted of an aggravated felony. A motion to reconsider or
reopen pursuant to 8 C.F.R. § 103.5 is incompatible with that method.

7
Undoubtedly, the IJ’s decision resulted in DHS instituting § 1228(b) proceedings

against Petitioner and obviating the possibility that he might receive an adjustment

of status under § 1255(i). But because the IJ’s decision did not result in a final order

of removal, that decision was not and is not subject to judicial review. 4 See

Hamilton v. Gonzales, 485 F.3d 564, 565–66 (10th Cir. 2007). So the only way

Petitioner can challenge the denial of his purported right to seek discretionary relief

from removal is by arguing DHS denied him the opportunity to object to the NOI by

issuing the FARO without waiting for the 10-day response period to elapse.

We also summarily dispose of DHS’s suggestion that Petitioner either waived

or forfeited his due process claim by failing to respond to the NOI. 5 See United

4
An “order of removal” is defined in 8 U.S.C. § 1101(a)(47)(A) as “the order
of the special inquiry officer [i.e., the IJ], or other such administrative officer to
whom the Attorney General has delegated the responsibility for determining whether
an alien is deportable, concluding that the alien is deportable or ordering
deportation.”
5
DHS further suggests the opportunity to “to inspect the evidence and rebut
the charges” provided for in § 1228(b)(3) constitutes an administrative remedy that
Petitioner failed to exhaust by not responding to the NOI. If DHS is correct, we
would need to consider whether § 1252(d)(1) deprives us of jurisdiction. We are
reluctant, however, to define the phrase “administrative remedy” as encompassing
an opportunity for an alien, in the capacity of a respondent, to “rebut the charges”
contained in an NOI issued pursuant to §1228(b). An administrative remedy in the
removal context denotes a means by which an alien, in the capacity of a petitioner,
may seek redress from an adverse agency decision. See, e.g., Shepherd v. Holder,
678 F.3d 1171, 1176–78 (10th Cir. 2012) (characterizing the unexcused failure to
appeal an IJ’s removal order to the BIA as a failure to exhaust); Sidabutar v.
Gonzales, 503 F.3d 1116, 1122 (10th Cir. 2007) (characterizing the failure to raise
new issues before the BIA by way of a motion to reconsider or reopen as a failure
to exhaust). An opportunity to respond to charges in the same context does not
(continued...)

8
States v. Olano, 507 U.S. 725, 733 (1993) (explaining that waiver is the “intentional

relinquishment or abandonment of a known right” while forfeiture is the “failure

to make the timely assertion of a right”). Petitioner did not waive § 1228(b)’s

procedural safeguards by refusing to acknowledge service of the NOI. The DO

personally served the NOI on Petitioner, plain and simple. The regulations, in

particular 8 C.F.R. 238.1(d)(1), authorize DHS to issue a FARO without delay only

if an alien “concedes deportability.” Nothing on the certificate of service form as

marked by the DO suggests Petitioner conceded his deportability.

Nor did Petitioner forfeit his due process claim. Because § 1228(b)(3) does

not authorize DHS to execute a FARO until 14 days after issuance, nothing really

prevented Petitioner from responding to the NOI within 10 days. The service form

does not indicate Petitioner wished to contest the NOI’s charges based on DHS’s

inability to establish his deportability under § 1228(b); neither does it indicate

Petitioner admitted those charges. But the form arguably suggests Petitioner wished

to contest his removal on some unidentified basis, or at least request withholding

of removal. Without clear indication that Petitioner did not intend to contest the

charges contained in the NOI, the DO should have waited 10 days to issue the

5
(...continued)
constitute a remedy in the usual sense. Wrongs give rise to remedies; mere charges
do not. But see G.S. v. Holder, 373 F. App’x 836, 843 (10th Cir. 2010)
(unpublished) (suggesting an alien’s failure to timely respond to a NOI bars judicial
review for failure to exhaust).

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FARO. Instead, the DO served the NOI on Petitioner and issued him the FARO at

the same time. The FARO undoubtedly provided Petitioner a final order from which

to appeal, regardless of whether he responded to the NOI. Furthermore, the DO’s

premature issuance of the FARO effectively rendered any response Petitioner might

make to the NOI a motion to reconsider, which neither § 1228(b) nor 8 C.F.R.

§ 238.1 recognize. Once the FARO issued, nothing required Petitioner to take

administrative steps to preserve his due process claim for appeal. We therefore turn

to the merits of Petitioner’s claim that DHS deprived him of procedural due process

by issuing the NOI and FARO at the same time.

An alien subject to removal “is entitled only to the Fifth Amendment guarantee

of fundamental fairness.” Schroeck v. Gonzales, 429 F.3d 947, 952 (10th Cir.

2005). This means Petitioner was entitled “to procedural due process.” Id. But “an

expectation of receiving process is not, without more, a[n] . . . interest protected by

the Due Process Clause.” Olim v. Wakinekona, 461 U.S. 238, 250 n.12 (1983)

(explaining the purpose of procedural due process “is to protect a substantive interest

to which the individual has a legitimate claim of entitlement”). To claim a violation

of his right to procedural due process, Petitioner “must have a liberty or property

interest in the outcome of the proceedings.” Arambula-Medina v. Holder, 572 F.3d

824, 828 (10th Cir. 2009). The outcome Petitioner now seeks is “the opportunity to

present evidence to convince [DHS] to terminate § 1228(b) proceedings and allow

him to obtain a decision on the merits of his application for [discretionary] relief

10
before an [IJ].” Pet. Reply. Br. at 10. Petitioner has a constitutionally protected

interest in such outcome only if § 1228(b) and its accompanying regulations provide

substantive criteria limiting DHS’s discretion to deny him that outcome. See

Kentucky Dept. of Corr. v. Thompson, 490 U.S. 454, 462 (1989) (“[T]he most

common manner in which [government] creates a [constitutionally protected] interest

is by establishing ‘substantive predicates’ to govern official decision-making . . .

and, further, by mandating the outcome to be reached upon a finding that the relevant

criteria have been met.”). They do not.

Section 1228(b), in tandem with 8 C.F.R. § 238.1, undoubtedly establishes

substantive criteria bearing upon DHS’s ability to expeditiously remove Petitioner.

Subsections § 238.1(b) and (d) empowered the DO to issue the FARO only if “clear,

convincing, and unequivocal evidence” established that Petitioner had not been

lawfully admitted for residency, had been convicted of an aggravated felony, and

was deportable under § 1227(a)(2)(A)(iii). 8 C.F.R. § 238.1(b)(1)(i)–(iv), (d)(1),

(d)(2)(i), (d)(2)(ii)(B). Neither § 1228(b) nor 8 C.F.R. § 238.1, however, limited

DHS’s discretion at any point to institute § 1228(b) proceedings and effectively deny

Petitioner discretionary relief. If Petitioner contested the charges that rendered him

amendable to § 1228(b) proceedings, we might face a different situation. This

is because the substantive outcome of those proceedings, that is, issuance of

the FARO, would have depended on DHS establishing the charges outlined in

the NOI and § 238.1(d). But Petitioner never has contested that he (1) is an alien;

11
(2) has not been lawfully admitted for residency; (3) has been convicted of an

aggravated felony (and that conviction is final); and (4) is deportable under 8 U.S.C.

§ 1227(a)(2)(A)(iii). This sounds the death knell of his petition for review of the

FARO because only a lack of that enumerated proof limited DHS’s discretion to

remove Petitioner pursuant to § 1228(b). Even if DHS, upon Petitioner’s plea, might

have terminated his § 1228(b) proceedings and freed him to seek discretionary relief

from removal, absolutely nothing in § 1228(b) or § 238.1 provide any substantive

predicates by which to measure such decision. Petitioner simply “has no liberty or

property interest in obtaining purely discretionary relief.” Arambula-Medina, 572

F.3d at 828 (emphasis added) (internal quotations omitted). And that is all Petitioner

seeks.

The Petition for Review is DENIED. Petitioner’s motion to file a

supplemental opening brief is DENIED.

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