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Flores-Ledezma v. Gonzales

Court: Court of Appeals for the Fifth Circuit
Date filed: 2005-06-27
Citations: 415 F.3d 375
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28 Citing Cases
Combined Opinion
                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                              June 27, 2005
                         FOR THE FIFTH CIRCUIT
                         _____________________           Charles R. Fulbruge III
                                                                 Clerk
                             No. 03-60845
                         _____________________

MANUEL FLORES-LEDEZMA,

                                                         Petitioner,

                                versus

ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,

                                                       Respondent.
__________________________________________________________________

                 Petition for Review of an Order
               of the Board of Immigration Appeals
_________________________________________________________________

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

     Manuel Flores-Ledezma (“Flores”), an alien convicted of an

aggravated felony who is not a legal permanent resident of the

United States (“non-LPR”), was removed to Mexico pursuant to

expedited removal proceedings under INA § 238(b), 8 U.S.C. §

1228(b).1   Flores petitions this court for review of his removal

order, challenging the Attorney General’s statutory discretion to

choose between expedited removal proceedings, under which a non-LPR

is prohibited from seeking hardship relief, and general removal

proceedings as violative of the guarantee of equal protection found


     1
      As is customary, we will refer to statutory sections in the
Immigration and Nationality Act (“INA”) by their INA citation. The
corresponding citation in the United States Code will only appear
when the statutory section is first cited.
in the Fifth Amendment’s Due Process Clause.       Because there exists

a rational basis for the Attorney General’s exercise of discretion,

we find no violation of the Fifth Amendment. Accordingly, Flores’s

petition for review is DENIED.

                                  I

     Flores is a native and citizen of Mexico who entered the

United States without inspection in or about 1995.         In February

1999, Flores was convicted in Texas state court of an aggravated

felony.2   Flores’s criminal conviction came to the attention of the

Immigration and Naturalization Service (“INS”)3 during the course

of Flores’s attempt to adjust his status on the basis of his

marriage to a United States citizen.

     In August 2003, the INS issued to Flores a Notice of Intent to

Issue a Final Administrative Removal Order pursuant to INA § 238(b)

(expedited removal).   The Notice charged that Flores was removable

under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), for

having been convicted of an aggravated felony as defined in INA §


     2
      Flores concedes that his        conviction    is   considered   an
aggravated felony under the INA.
     3
      As of March 1, 2003, the INS ceased to exist and its
functions were transferred to the Department of Homeland Security
(“DHS”). See Homeland Security Act of 2002, Pub. L. No. 107-296,
§§ 441, 451, 471, 116 Stat. 2135 (Nov. 25, 2002). Authority over
administrative removal proceedings now resides with the DHS,
specifically with the Bureau of Immigration and Customs
Enforcement. See Peters v. Ashcroft, 383 F.3d 302, 304 n.1 (5th
Cir. 2004). Mostly out of habit, but also for ease of reading, we
refer to the INS in this opinion rather than the assorted acronyms
of the DHS divisions responsible for immigration matters.

                                  2
101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F). Flores was provided with

ten calendar days to respond to these charges in writing.

     On September 12, Flores’s counsel sent a letter to the INS

formally contesting the charges.    Counsel further requested that

Flores be placed in “general” removal proceedings under INA § 240,

8 U.S.C. § 1229a.   Flores asserted that he was eligible to apply

for discretionary adjustment of status to that of an LPR under INA

§ 245, 8 U.S.C. § 1255, with a discretionary “hardship” waiver of

his inadmissibility for his criminal offense pursuant to INA §

212(h), 8 U.S.C. § 1182(h).     Such discretionary relief is not

available to individuals placed in expedited proceedings under INA

§ 238.4

     On September 25, the INS informed Flores that expedited

removal proceedings were appropriate, and the INS issued its Final

Administrative Removal Order, finding that Flores was deportable as

charged and ordering that he be removed from the United States to

Mexico. One day later, Flores’s counsel, apparently unaware of the

INS’s final order, again requested that Flores be placed in general

removal proceedings.

     On October 16, Flores filed a petition for review of the INS’s

final order in this court.    Flores was removed from the United

States to Mexico on October 21, 2003.

     4
      Another notable difference between expedited and general
removal proceedings is that expedited removal proceedings are
administrative proceedings whereas general removal proceedings are
before an immigration judge. INA §§ 238(c)(2), 240.

                                3
                                      II

                                      A

     We begin by reciting the statutory scheme challenged by

Flores.    The statutes are clear: any alien who has committed an

aggravated felony at any time after admission is deportable. INA §

237(a)(2)(A)(iii).      A   non-LPR    who   is   deportable   under   INA   §

237(a)(2)(A)(iii) may be subject to the issuance of a removal order

under either INA § 238 or INA § 240.         INA § 238(b).     The Attorney

General has discretion to determine under which set of procedures

the removal order is issued.       Id.

     Aliens placed in general removal proceedings under § 240 are

eligible     for   discretionary      adjustment     of   status   with      a

discretionary waiver based on hardship to the alien’s United States

citizen or legal permanent resident family members.            INA § 245, 8

U.S.C. § 1255 (adjustment of status); INA § 212(h)(1)(B)(hardship

waiver).5 Aliens placed in expedited removal proceedings, however,

are not “eligible for any relief from removal that the Attorney

General may grant in the Attorney General’s discretion.”               INA §

238(b)(5).    Flores concedes that the expedited removal proceedings

comport with minimum standards of due process; he only argues that


     5
      Although on its face the hardship waiver found in INA §
212(h)(1)(B) is only applicable to inadmissible aliens, in practice
the waiver is also available to deportable aliens. See Jankowski-
Burczyk, 291 F.3d 172, 175 & n.1-2 (2d Cir. 2002).           INA §
242(a)(2)(B)(i), 8 U.S.C. § 1252(a)(2)(B)(i), also evidences this
applicability by noting § 212(h) denials of discretionary relief in
its provision precluding judicial review of orders of removal.

                                      4
the   Attorney    General’s     unfettered    discretion    in   choosing   the

proceedings      results   in   an   equal   protection    violation   because

similarly situated individuals are treated differently.

                                        B

      Before we proceed to the merits of Flores’s claim, we must

examine the jurisdiction of our court to consider Flores’s petition

for review. Although both parties agree that we have jurisdiction,

they assert different bases for that jurisdiction.               Flores states

in his brief that this court has habeas corpus jurisdiction to hear

his petition under 28 U.S.C. § 2241, and the Government states that

this court’s jurisdiction is based on INA § 238(b)(3), which

provides that the alien has an “opportunity to apply for judicial

review under section 1252 [INA § 242] of this title.”               INA § 242

defines the jurisdiction of this court largely by defining where

jurisdiction does not exist.

      Flores has filed a timely petition for review6 which is not

mooted by his subsequent removal from the United States.               Alwan v.

Ashcroft, 388 F.3d 507, 510-11 (5th Cir. 2004).             Our jurisdiction




      6
      Flores filed his petition within 30 days of the date of the
final order of removal as required by INA § 242(b)(1). Although
this court has not before directly spoken to this issue, the fact
that the INS’s notice to Flores advised him that he could seek
judicial review of the order by filing a petition for review within
14 calendar days after the date the final order was issued
(presumably the 14-day waiting period for deportation prescribed by
INA § 238(b)(3)) does not alter the statutory grant of 30 days to
file a petition for review in INA § 242(b)(1).

                                        5
to review orders from expedited removal proceedings is defined by

INA § 242(a)(2)(C):

          Notwithstanding any other provision of law
          (statutory or nonstatutory) . . . no court
          shall have jurisdiction to review any final
          order of removal against an alien who is
          removable by reason of having committed a
          criminal offense covered [in various sections
          of this title].

Despite the sweeping language of this prohibition on judicial

review, this provision was recently amended by the REAL ID Act of

2005, Pub. L. No. 109-13, 119 Stat. 231, sec. 106(a)(1)(A)(iii), to

clarify that nothing in the above language

          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.

INA § 242(a)(2)(D). This amendment to the INA certainly preserves,

if not expands, our settled case law in which we have found that we

have jurisdiction to consider “substantial constitutional claims”.

See Assad v. Ashcroft, 378 F.3d 471, 475 (5th Cir. 2004); Balogun

v. Ashcroft, 270 F.3d 274, 278 n.11 (5th Cir. 2001).

     We are similarly not deprived of jurisdiction over Flores’s

petition for review in this case by INA § 242(g), which prohibits

courts from having

          jurisdiction to hear any cause or claim by or
          on behalf of any alien arising from the
          decision or action by the Attorney General to
          commence proceedings, adjudicate cases, or
          execute removal orders against any alien under
          this chapter.


                                6
Flores is not simply challenging the discretionary decision of the

Attorney General to commence removal proceedings or execute removal

orders, but rather he challenges the constitutionality of the

statutory scheme allowing for such discretion.                    The vehicle for

this constitutional challenge is his challenge to the resulting

final removal order.      In considering this jurisdictional bar, the

Supreme Court has noted that its purpose is to exclude from “non-

final order judicial review” certain decisions and actions of the

Attorney General.       See Reno v. American-Arab Anti-Discrimination

Comm., 525 U.S. 471, 483 (1999); see also Requena-Rodriguez v.

Pasquarell, 190 F.3d 299, 303-04 (5th Cir. 1999) (noting in a

habeas case that § 242(g) does not preclude a challenge to a final

deportation order); Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 599

(9th Cir. 2002) (jurisdictional bar is to be construed narrowly and

does   not   preclude     the   court       from   ruling    on    constitutional

challenges to deportation procedures); Chainski v. Ziglar, 278 F.3d

718, 721 (7th Cir. 2002) (a rare case that presents a substantial

constitutional issue or bizarre miscarriage of justice is an

exception to § 242(g) jurisdictional               bar).    Squarely addressing

this issue for the first time, we conclude that INA § 242(g) does

not preclude us from considering Flores’s challenge to his removal

order on constitutional grounds.

       Because   Flores   raises   a    constitutional        question    in   his

petition for review, none of the jurisdiction-stripping provisions

in the INA deprive this court of its jurisdiction to consider

                                        7
Flores’s petition for review. Accordingly, we have jurisdiction to

proceed to the merits of Flores’s petition.7

                                     C

     Finding that we have jurisdiction, we now turn to the merits

of Flores’s equal protection challenge under the Fifth Amendment to

the Attorney General’s discretion to initiate expedited removal

proceedings against non-LPRs convicted of aggravated felonies.

     Both parties agree that the discretion afforded the Attorney

General need only meet the standards applied under rational basis

review.   See Bolling v. Sharpe, 347 U.S. 497 (1954).                The Supreme

Court has held that “a classification neither involving fundamental

rights nor proceedings along suspect lines is accorded a strong

presumption of validity”.    Heller v. Doe, 509 U.S. 312, 319 (1993).

It is unquestioned that the Attorney General’s discretion does not

involve fundamental rights or a classification along suspect lines

and, therefore, this statutory scheme must be “upheld against equal

protection challenge if there is any reasonably conceivable state

of   facts    that   could   provide        a    rational      basis   for   the

classification.”     Id. at 320.   Given the “need for special judicial

deference    to   congressional    policy       choices   in   the   immigration


     7
      Because we find that we have jurisdiction to review Flores’s
petition under the INA, we need not consider Flores’s contention
that this court has habeas jurisdiction under 28 U.S.C. § 2241.
Moreover, the recent amendments to INA § 242 by the REAL ID Act
raise the question whether habeas continues to provide a basis for
this court’s jurisdiction. There is no call for us to address this
question today, however.

                                     8
context”, “a facially legitimate and bona fide reason” will satisfy

the rational basis test.       Requena-Rodriguez, 190 F.3d at 309

(internal citations omitted).

     Flores asserts that the unfettered discretion giving the

Attorney General the power to choose between expedited removal

proceedings   and   general   removal   proceedings    violates   equal

protection because no rational reason exists for the Attorney

General’s ability to draw a distinction between similarly situated

non-LPRs.     The    Government   counters    that    the   challenged

“classification” amounts to prosecutorial discretion, which is all

but immune from challenge unless tainted by determinations made on

the basis of a suspect class.      In the immigration context, the

Supreme Court has noted that an alien unlawfully in the United

States generally “has no constitutional right to assert selective

enforcement as a defense against his deportation.”       American-Arab

Anti-Discrimination Comm., 525 U.S. at 488. Beyond the immigration

context, the Supreme Court has upheld prosecutorial choice against

equal protection and due process challenges when the government has

discretion to prosecute under either of two provisions, one of

which has harsher consequences than the other.        United States v.

Batchelder, 442 U.S. 114, 123-25 (1979). The Government’s argument

logically urges that an exercise of discretion that bars an alien

from applying for wholly discretionary relief cannot constitute an

equal protection violation.



                                  9
     Moreover, the Government argues that a rational basis exists

for extending the Attorney General such discretion.          Specifically,

the Government points out that non-LPRs include many persons who

could rationally be granted special deference and courtesy under

the immigration laws: ambassadors, diplomats, employees of foreign

governments, journalists, scholars, teachers, and professors, among

others.    The Second Circuit recognized this, noting that “[i]n

granting § 212(h) discretion to the Attorney General, Congress may

rationally have considered that the Attorney General would exercise

the discretion to grant waivers rationally for reasons of state,

policy, courtesy, or comity, not to illegal aliens of the criminal

class.”    Jankowski-Burczyk, 291 F.3d at 180.         The Government also

contends that the Attorney General’s ability to put non-LPRs into

expedited removal proceedings helps to equalize their situation

with that    of   LPRs   convicted   of   aggravated   felonies,   who   are

categorically barred from seeking a hardship waiver.            See INA §

212(h).8

     8
      The Government also asserts that Flores cannot bring a claim
under the equal protection component of the Fifth Amendment’s Due
Process Clause because Flores has no liberty or property interest
in discretionary relief. This court has never directly addressed
whether such an interest is required for a Fifth Amendment equal
protection claim, although we have suggested that such an interest
is required. See, e.g., Requena-Rodriguez, 190 F.3d at 309 n.34.
We have also indicated that “due process does not always require of
the federal government what equal protection would of the states.”
Rodriguez-Silva v. I.N.S., 242 F.3d 243, 247 (5th Cir. 2001)
(citing Hampton v. Mow Sun Wong, 426 U.S. 88 (1976)). We do not
need to reach this question, however, because regardless of whether
Flores is required to demonstrate a liberty or property interest in
discretionary relief, he has failed to establish an equal

                                     10
     Although we decline at this juncture to equate the Attorney

General’s discretion to choose which proceeding a non-LPR will

receive with prosecutorial discretion, it is fully convincing that

the Government has highlighted a rational basis for the Attorney

General’s exercise of such discretion.     Because a legitimate and

bona fide reason exists for the Attorney General to choose whether

LPRs will be placed in expedited rather than general removal

proceedings,   the   equal   protection   component   of   the    Fifth

Amendment’s Due Process Clause is not violated.

                                 III

     For the foregoing reasons, Flores’s petition for review of his

final order of removal is

                                                                 DENIED.




protection violation under the Fifth Amendment.

                                 11