Meng Li v. Robert C. Eddy, District Director, Ins

PER CURIAM Opinion; Dissent by Judge HAWKINS

PER CURIAM:

Appellant Meng Li is a native and citizen of China who seeks judicial review of the merits of the Immigration and Naturalization Service’s order of expedited removal under the provisions of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub.L. 104-208, 110 Stat. 3009, as amended by Act of Oct. 11, 1996, Pub.L. No. 104-302, 110 Stat. 3656. The district court dismissed Li’s petition for habeas corpus relief, holding that under the statute’s stringent limitations on judicial review of expedited removal orders, it lacked authority to review the merits of her claim. See 8 U.S.C. §§ 1252(e)(2); (e)(5). We affirm.

On June 6, 1997, Li was detained by the Immigration and Naturalization Service (INS) in Anchorage, an interim stop on her trip from China to New York. Although Li alleges that she presented a facially valid visa that she had used successfully on an earlier occasion, the INS determined Li was attempting to enter the country by engaging in fraud or misrepresentation, and used its expedited removal authority under 8 U.S.C. § 1225(B)(l)(A)(i) to exclude Li from the country.1 The order itself was issued on a form stating that the INS had determined the named alien to be excludable because of an attempt to enter the country through fraud or misrepresentation. The form included a space for a description of the nature of the fraud or misrepresentation, but the INS left that space blank in Li’s order.

Li filed this habeas corpus petition on June 12, 1997, contending her visa entitled her to entry into the United States and that her exclusion was therefore unlawful. She sought an order admitting her into this country and voiding the five-year bar to her reentry that was contained in the removal order.

Li’s removal occurred after the effective date of IIRIRA, a statute that empowers the INS to expedite the removal of certain aliens deemed inadmissible. 8 U.S.C. § 1225(b)(1)(A)®.

IIRIRA restricts judicial review of expedited removal orders. These restrictions are incorporated in 8 U.S.C. § 1252(e). Two are relevant to this case. The first, subsection (e)(2), sets general limits on *1134habeas proceedings involving aliens facing expedited removal from the United States, and the second, subsection (e)(5), precisely defines the scope of a court’s inquiry.

Under subsection (e)(2), a court hearing a habeas corpus petition is limited to determining whether the petitioner was an alien, whether the petitioner was removed under the appropriate section, and whether the petitioner can prove that the petitioner is a lawful resident or is requesting asylum as a refugee.2

Li does not contend that she is a lawful resident, a refugee or an asylum seeker. Nor does she dispute her alienage, or question the fact that the government invoked section 1225(b)(1) to order her removal. She questions only whether she committed any fraud that made the section applicable.

On its face, subsection (e)(2) does not appear to permit the court to inquire into whether section 1225(b)(1) was properly invoked, but only whether it was invoked at all. Were there any doubt of congressional intent, it is resolved by subsection (5), that expressly declares that judicial review does not extend to actual admissibility. It provides:

In determining whether an alien has been ordered removed under section 1225(b)(1) of this title, the court’s inquiry shall be limited to whether such an order in fact was issued and whether it relates to the petitioner. There shall be no review of whether the alien is aetually inadmissible or entitled to any relief from removal.

8 U.S.C. § 1252(e)(5).

Although we have not had occasion to review these particular provisions of this relatively recent statute, we have discussed the overall architecture of IIRIRA in the context of the transitional rules to be applied prior to the effective date of the statute. See Magana-Pizano v. INS, 200 F.3d 603 (9th Cir.1999). These rules are materially indistinguishable from the statute itself. See Flores-Miramontes v. INS, 212 F.3d 1133, 1136-37 (9th Cir.2000).

In Magana-Pizano we held that more general habeas review of INS decisions remains available under 28 U.S.C. § 2241 unless Congress has explicitly restricted such review. There we said:

IIRIRA § 242(g) limits judicial review, but does not refer to habeas jurisdiction under 28 U.S.C. § 2241. Presumably, the holding in Felker placed Congress on notice that it could repeal habeas jurisdiction under § 2241 only by express command, and not by implication.

Magana-Pizano, 200 F.3d at 609, citing Pak v. Reno, 196 F.3d 666, 673-74 (6th Cir.1999), citing Felker v. Turpin, 518 U.S. 651, 660, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996).

There is no specific limitation on the availability or scope of habeas corpus review of ordinary removal orders like the one in Magana-Pizano. With respect to review of expedited removal orders, how*1135ever, the statute could not be much clearer in its intent to restrict habeas review. See 8 U.S.C. § 1252(e)(2) (section entitled “Ha-beas corpus proceedings” provides “judicial review ... shall be limited-”). Accordingly, only two issues were properly before the district court: whether the order removing the petitioner was in fact issued, and whether the order named Li. Because these issues were not contested in the case, the district court properly dismissed the petition for failure to raise any issue within its jurisdiction to review.

Since it appears that the INS did not mistakenly identify petitioner, we do not reach the issue of whether the restrictions on review of habeas corpus contained in 8 U.S.C. § 1252(e) would prevent the court from considering a petition from someone allegedly targeted for expedited removal on the basis of mistaken identity. The government agrees there is no “in custody” requirement for the limited review provisions of section 1252(e). Nor do we need to decide whether Li satisfies the in custody requirement for habeas corpus relief under 8 U.S.C. § 2241, even though she is no longer in the country or at the border. Because of the limitation of § 1252(e)(2), the district court would have no jurisdiction to decide a section 2241 habeas corpus petition filed by Li.

The dissent maintains that, under our holding in Maganar-Pizcmo, we are still free to review whether the petitioner actually committed any fraud that would render her inadmissible under section 1225(b), despite the clear, explicit language of section 1252(e)(5) barring review of “whether the alien is actually inadmissible or entitled to any relief from removal.” In light of that restriction, we cannot agree with our respected colleague.

In Maganar-Pizano we considered a statutory bar to appeals by aliens who were deportable because of a criminal conviction, and we suggested that a petitioner could challenge whether she was a member of the category of aliens for which no review was permitted. See Magano¡r-Pi-zano, 200 F.3d at 607. Our decision in that case was grounded in the relevant statutory language. Where an alien not at the border is subject to deportation “by reason of having committed” a certain type of criminal offense, the court may inquire whether the petitioner in fact committed such an offense and is subject to the statute’s provisions. The statutory language we discussed in Magancc-Pizano did not preclude us from considering whether the petitioner committed an offense that triggers the limitations on review of the deportation order. Here, the statutory language giving petitioners such as Li a limited grant of habeas corpus jurisdiction expressly precludes us from reviewing whether the petitioner is entitled to admission.

We emphasize that this case does not implicate the jurisdictional issues that would be raised had Li been lawfully admitted to this country. Cf. INS v. St. Cyr, — U.S. —, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). We leave for another day the question of our jurisdiction to determine whether an individual in such a situation is lawfully “ordered removed under such section.” Section 1225(b) authorizes the INS to issue expedited removal orders for certain individuals who appear to be seeking entry to the U.S. by fraud or misrepresentation. See 8 U.S.C. § 1225(b) (authorizing expedited removal of aliens at the border where an immigration officer determines the alien obtained a visa through fraud and the alien does not intend to request asylum or express fear of prosecution); 8 U.S.C. § 1182(a)(6)(C)(i) (denying entry to an alien at the border who procures visa through material misrepresentation). If the INS were to use these provisions or to remove individuals not seeking admission *1136at the border, then its actions would bear no relationship to the statutory authority in section 1225(b).

Such facts are not present here. This case involves a petitioner at the border who was not lawfully admitted. Hers is clearly the type of case for which the expedited removal provisions of 8 U.S.C. § 1225(b) and the limited review provisions of section 1252(e)(2) were designed. See H.R. Conf. Rep. No. 104-518 (1995), U.S.Code Cong, and Adm. News, at 924 (discussing applicability of expedited removal procedure to “individuals who arrive in the United States”).

The petitioner also contends that her removal violated a constitutional right to due process. Li, however, has no constitutional due process right to challenge her immigration status or to petition for entry into the United States because she is a non-resident alien seeking entry at the border into the United States. See U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542, 70 S.Ct. 309, 94 L.Ed. 317 (1950) (admission to the U.S. is a “privilege granted to an alien only upon such terms as the U.S. shall prescribe”). The Supreme Court has held that the discretion of Congress to determine which and on what basis aliens may enter this country is paramount. See Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977) (“over no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens”); Alvarez-Mendez v. Stock, 941 F.2d 956, 961 n. 4 (9th Cir.1991).

To the extent that Li’s constitutional challenge targets the systemic expedited removal procedures Congress adopted in the statute, it is not within the jurisdiction of the courts in this circuit. Congress has declared that such systemic challenges are to be filed in the District of Columbia, and within 60 days of promulgation of the expedited removal procedures. Judicial review there is limited only to whether the Attorney General’s regulations implementing the expedited removal authority are constitutional. See 8 U.S.C. § 1252(e)(3); American Immigration Lawyers Ass’n v. Reno, 199 F.3d 1352, 1357 (D.C.Cir.2000) (reviewing the Attorney General’s regulations governing expedited removal in light of the jurisdictional restrictions in subsection (e)(3), and finding regulations lawful).

AFFIRMED.

. 8 U.S.C. § 1225 provides in relevant part that:

if an immigration officer determines that an alien ... is inadmissible under section 1182(a)(6)(C) or 1182(a)(7) of this title, the officer shall order the alien removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum under section 1158 of this title or a fear of persecution.
8 U.S.C. § 1182(a)(6)(C)(i) provides that "Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure ... a visa, other documentation, or admission into the United States or other benefit provided under this chapter is inadmissible.'1 8 U.S.C. § 1182(a)(7) states that any immigrant not in possession of valid travel documents "is inadmissible.”

. 8 U.S.C. § 1252(e)(2) provides the following:

(2) Habeas corpus proceedings
Judicial review of any determination made under section 1225(b)(1) of this title is available in habeas corpus proceedings, but shall be limited to determinations of-
(A) whether the petitioner is an alien,
(B) whether the petitioner was ordered removed under such section, and
(C)whether the 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 under section 1157 of this title, or has been granted asylum under section 1158 of this title, such status not having been terminated, and is entitled to such further inquiry as prescribed by the Attorney General pursuant to section 1225(b)(1)(C) of this title.