UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-11013
_____________________
SIGRID BRUMME,
Petitioner-Appellant,
versus
IMMIGRATION AND NATURALIZATION SERVICE, Department of Justice,
United States of America; BOB SCHULTZ, Immigration and
Naturalization Airport Director; ANNE M. ESTRADA, Dallas District
Director of the Immigration and Naturalization Service; JOHN
ASHCROFT, Attorney General of the United States of America,
Respondents-Appellees.
Appeal from the United States District Court
for the Northern District of Texas
December 7, 2001
Before DUHÉ, WIENER, and BARKSDALE, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
Primarily at issue is whether, in habeas proceedings, federal
courts can review an Immigration and Naturalization Service (INS)
decision that an alien is subject to expedited removal, pursuant to
8 U.S.C. § 1225(b)(1)(A)(i). Sigrid Brumme, a German citizen, was
subjected to such expedited removal upon her attempted reentry, on
a visitor visa, into the United States. She contends the district
court erred in concluding it lacked jurisdiction to review the INS’
determination that she was subject to the statute, which mandates
expedited removal of certain undocumented aliens. Alternatively,
she asserts that, if the district court lacked such jurisdiction,
the statute is unconstitutional, facially and as applied.
AFFIRMED.
I.
Brumme, a German native and citizen, has frequently
accompanied her husband on business trips to the United States. In
fact, she and her husband own a house in Tucson, Arizona. Brumme’s
most recent visitor visa, issued on 6 December 1995, was valid
through December 2005. In March 2000, the Brummes returned to the
United States and received entry permits, valid through that
August. Shortly after arriving, Brumme’s husband was diagnosed
with cancer and began treatment in Tucson.
Brumme returned to Germany on 11 July 2000 to visit her
mother. Returning to the United States 10 days later, Brumme was
questioned by an INS Immigration Inspector at the Dallas/Ft. Worth
Airport and acknowledged she had previously entered the United
States intending to become an immigrant. (Intending immigrants
generally require an “immigrant” visa — authorizing permanent
residence — as opposed to one of the various “nonimmigrant” visas,
such as Brumme’s “visitor” visa — authorizing a temporary stay for
business or pleasure. See generally 8 U.S.C. § 1182(a)(7).)
The Inspector determined that Brumme did not possess a valid
unexpired immigrant visa and informed her that her visitor visa did
not permit her to remain indefinitely in the United States.
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According to the Inspector, the visitor visa required Brumme to
make a significant departure by remaining outside the United States
longer than she remained inside. Brumme acknowledged she
understood that the visitor visa did not permit her to remain in
the United States indefinitely; but she believed she could stay in
the United States, leave for a short period, and return.
Based on Brumme’s admission that she was an intended
immigrant, and because she did not possess the requisite immigrant
visa, the Inspector concluded that, pursuant to 8 U.S.C. §
1182(a)(7), Brumme was inadmissible to the United States. That
section provides, in pertinent part: “[A]ny immigrant at the time
of application for admission ... who is not in possession of a
valid unexpired immigrant visa, reentry permit, border crossing
identification card, or other valid entry document ... is
inadmissible”. 8 U.S.C. § 1182(a)(7).
The Inspector ordered Brumme removed almost immediately,
pursuant to 8 U.S.C. § 1225(b)(1)(A)(i), which provides:
If an immigration officer determines that an
alien ... who is arriving in the United States
... is inadmissible under ... [8 U.S.C. §]
1182(a)(7) ..., the officer shall order the
alien removed from the United States without
further hearing or review....
(Emphasis added.) The Inspector also gave Brumme a “Notice to
Alien Ordered Removed”, which “prohibited [her] from entering,
attempting to enter, or being in the United States ... for a period
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of 5 years from the date of [her] departure ... as a consequence of
[her] having been found inadmissible”.
The next day, Saturday, 22 July 2000, before Brumme departed
on a flight to Germany, she filed for habeas relief and a temporary
restraining order against her removal. That day, the district
court ordered the INS: to show cause why Brumme was not entitled
to a hearing before an immigration judge; and to present Brumme
that Monday, 24 July. Brumme, however, was removed on a flight
later that day (Saturday). Accordingly, she moved to hold the INS
in contempt.
On 2 August 2000, the district court denied the contempt
motion and dismissed the habeas petition and accompanying motion
for a restraining order. Concerning the habeas petition, the court
noted 8 U.S.C. § 1252(e)(2), which limits the scope of review in
such habeas proceedings:
Judicial review of any determination made
under [8 U.S.C. §] 1225(b)(1) ... 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..., or has been granted asylum....
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(Emphasis added.) The court concluded the answers to those
questions were uncontroverted.
The real issue Brumme asked the district court to address,
however, was whether she was admissible or entitled to relief from
removal. The court held it was expressly precluded from
considering that question, in the light of § 1252(e)(5), which
provides:
In determining whether an alien has been
ordered removed under [8 U.S.C. §] 1225(b)(1)
..., 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
actually inadmissible or entitled to any
relief from removal.
(Emphasis added.) Accordingly, the court held it lacked
jurisdiction regarding the requested habeas relief.
II.
INS v. St. Cyr, 121 S. Ct. 2271 (2001), decided approximately
one month before the district court’s judgment in this case, bears
on Brumme’s appeal. Unlike the present case, however, St. Cyr did
not concern an alien subjected to expedited removal. Rather, it
concerned a lawful permanent resident who was ordered deported
after pleading guilty to selling a controlled substance. Id. at
2275.
At issue in St. Cyr was whether the district court possessed
habeas jurisdiction to review the Attorney General’s determination
“that [certain statutory] restrictions on discretionary relief from
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deportation ... do not apply to removal proceedings brought against
an alien who pled guilty to a deportable crime before their
enactment”. Id. The INS asserted, inter alia, that 8 U.S.C. §§
1252(a)(1), (a)(2)(C), and (b)(9) — concerning judicial review of
non-expedited removal orders generally, and of removal orders
against criminal aliens specifically — stripped the district court
of habeas jurisdiction to decide that issue.
The Court first reiterated the well-established plain
statement rule, which “requir[es] a clear statement of
congressional intent to repeal habeas jurisdiction”. St. Cyr, 121
S. Ct. at 2278-79. The Court then noted the lack of a plain
statement — indeed, the lack of any mention of habeas whatsoever —
in each of the provisions cited by the INS. Id. at 2285-87. The
focus of those provisions, as the Court explained, is “judicial
review” or “jurisdiction to review”, as opposed to “habeas corpus”.
Id. at 2285. Because “judicial review”, or “jurisdiction to
review”, and “habeas corpus” have historically distinct meanings,
the INS’ cited provisions could not satisfy the plain statement
rule. Id. at 2285-87. Consequently, they did not strip the
district court’s jurisdiction under the general habeas statute, 28
U.S.C. § 2241. In dissent, and of significance for this case,
Justice Scalia observed that, in the light of subpart (e)(2) of 8
U.S.C. § 1252 (“Judicial review of any determination made under [8
U.S.C. §] 1225(b)(1) ... is available in habeas corpus
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proceedings....”), which was enacted contemporaneously with the
INS’ cited provisions, “[i]t is hard to imagine how Congress could
have made it any clearer that, when it used the term ‘judicial
review’ in [the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996] it included judicial review through
habeas corpus”. Id. at 2295 (Scalia, J., dissenting).
The present case involves different statutory provisions than
those at issue in St. Cyr, as judicial review of expedited removal
orders is governed by 8 U.S.C. § 1252(e). See Li v. Eddy, 259 F.3d
1132, 1134-36 (9th Cir. 2001) (noting judicial review vel non of
expedited removal orders, restricted pursuant to § 1252(e)(2), does
not concern the jurisdictional issues presented in St. Cyr).
Nevertheless, it appears the district court considered the effect
vel non of St. Cyr. In its memorandum order, the district court
alternately concluded that, in the light of 8 U.S.C. §§ 1252(e)(2)
and (e)(5): “the scope of review of expedited removal orders is
... narrow[ed]”; “the court lacks power to address [the] question”
of whether Brumme was admissible; and the court “does not have
jurisdiction over [the] habeas petition”. These varying references
to jurisdiction may well have been tuned to the holding in St. Cyr.
Likewise, although we alternate terms as statutory language and
case law dictate, we treat the extent of review permitted by the
applicable statutory provisions as a jurisdictional issue. In this
regard, a dismissal for lack of subject matter jurisdiction is
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reviewed de novo. E.g., Edwards v. Johnson, 209 F.3d 772, 776 (5th
Cir. 2000).
The expedited removal provisions at 8 U.S.C. § 1225(b)(1) were
enacted as part of the earlier referenced Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L.
No. 104-208, 110 Stat. 3009-546. As noted, under the IIRIRA, if an
inspecting immigration officer determines an alien arriving from
abroad is inadmissible because of, inter alia, invalid
documentation, the inspector “shall order the alien removed from
the United States without further hearing or review”. 8 U.S.C. §
1225(b)(1)(A)(i). The statute provides additional procedures to
aliens who “indicate[] either an intention to apply for asylum ...
or a fear of persecution”, 8 U.S.C. § 1225(b)(1)(A)(i), (b)(1)(B);
and interim regulations afford additional procedures to persons
claiming the “status” of citizenship, lawful permanent residence,
or previous admission as a refugee or asylee, 8 C.F.R. §
235.3(b)(5). Brumme does not claim admission, however, under any
of these categories.
The IIRIRA recognizes limited judicial review, in the United
States District Court for the District of Columbia, of certain
challenges to the expedited removal “system”. 8 U.S.C. §
1252(e)(3). The system has been challenged in that court on
various grounds, including the contention — akin to Brumme’s — that
expedited removal should not apply when an alien’s travel
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documentation is facially valid. See American Immigration Lawyers
Ass’n v. Reno, 18 F. Supp. 2d 38 (D.D.C. 1998), aff’d, 199 F.3d
1352 (D.C. Cir. 2000). The district court held that plain language
“refutes [the] argument that inspecting immigration officers are
restricted [to making] determinations of the ‘facial’ validity of
documents”. Id. at 56.
A.
The nub of Brumme’s contention is that the plain language of
8 U.S.C. § 1252(e)(2) — permitting habeas review of, inter alia,
“whether the petitioner was ordered removed under [§ 1225(b)(1)]”
— “permits the court to review whether [§ 1225(b)(1)] was
applicable in the first place”. She makes this contention, despite
Congress’ admonishment that, as quoted earlier, in determining
whether a habeas petitioner was ordered removed under § 1225(b)(1),
“the court’s inquiry shall be limited to whether such an order in
fact was issued and whether it relates to the petitioner”. 8
U.S.C. § 1252(e)(5) (emphasis added). Brumme attempts an end run
around this language; but the language is clear, and the matter
ends there. See Estate of Cowart v. Nicklos Drilling Co., 505 U.S.
469, 476 (1992) (“The controlling principle in this case is the
basic and unexceptional rule that courts must give effect to the
clear meaning of statutes as written.”).
In sum, §§ 1252(e)(2) and (5) are sufficient to satisfy the
plain statement rule concerning habeas restrictions. E.g., St.
9
Cyr, 121 S. Ct. at 2278-79. Along this line, St. Cyr opined: “we
do not think, given the longstanding distinction between ‘judicial
review’ and ‘habeas,’ that § 1252(e)(2)’s mention of habeas ... is
sufficient to establish that Congress intended to abrogate the
historical distinction between two terms of art in the immigration
context”. Id. at 2286 n.35 (emphasis added). Nevertheless, the
language of § 1252(e)(2) clearly operates, at the very least, to
limit the scope of review in a habeas proceeding involving
determinations made under § 1225(b)(1). Review of the issue Brumme
presented to the district court, and which she presents on appeal,
does not fall within the scope of review permitted by § 1252(e)(2).
The Ninth Circuit agrees. Post-St. Cyr, and in response to a
similarly-situated habeas petitioner’s assertion that the district
court had jurisdiction to consider whether § 1225(b)(1)(A)(i)
applied (the same assertion Brumme makes), the Ninth Circuit held:
“With respect to expedited removal orders, ... the statute could
not be much clearer in its intent to restrict habeas review”. Li,
259 F.3d at 1134-35 (emphasis added).
B.
In district court, Brumme’s facial and as-applied
constitutional challenges were not raised in her habeas petition,
memorandum in support of that petition, motion to hold the INS in
contempt, brief in support of the district court’s jurisdiction, or
supplemental brief in support of jurisdiction. Indeed, during the
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district court proceedings, the only reference to an alleged
constitutional violation occurred in the contempt hearing, and only
then upon the court’s prompting:
[COURT]: What Constitutional right or law or
treaty of the United States does Ms. Brumme
contend was violated in her case?
[BRUMME’S COUNSEL]: Of course, the 5th
Amendment of the Constitution guarantees due
process, and the due process guarantees that
one not be submitted to detention or penalty
without notice of grounds of the detention or
penalty. And in this case the statute gives
notice of certain acts that will result in
removal from the United States.
[COURT]: Can you stop just a minute? What
statute are you referring to there?
[BRUMME’S COUNSEL]: Your honor, [I am]
referring to 8 United States Code Section
1225(B)(1)([A])(i).
This fleeting, amorphous reference to the Fifth Amendment — offered
only in response to prodding by the court in the contempt
proceeding, not the merits proceeding now being reviewed — does not
preserve the constitutional claim at issue. To the extent — if at
all — Brumme intended to mount a constitutional challenge in
district court, such claim is forfeited.* See, e.g., Nordgren v.
*
We note, however, the holding of the United States District
Court for the District of Columbia in American Immigration Lawyers
Ass’n, discussed supra:
Thus, in view of long-standing precedent
holding that aliens have no due process
rights, the Court concludes that the alien
plaintiffs here cannot avail themselves of the
protections of the Fifth Amendment to
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Hafter, 789 F.2d 334, 339 n.4 (5th Cir.), cert. denied, 479 U.S.
850 (1986); Emory v. Tex. State Bd. of Med. Exam’rs, 748 F.2d
1023, 1027 n.* (5th Cir. 1984).
That is not to say, however, that, had constitutional claims
been properly presented to the district court, the district court
would have had jurisdiction to hear them or that we could have
reviewed them. As noted, 8 U.S.C. § 1252(e)(3)(A) provides:
“Judicial review of determinations under section 1225(b)”,
including “whether such section ... is constitutional”, “is
available in an action instituted in the United States District
Court for the District of Columbia”. (Emphasis added.) In any
event, we express no opinion as to jurisdiction, vel non, over
constitutional challenges to such expedited removals. Likewise, we
express no opinion as to the INS’ contention that the habeas
petition of a deported alien in Brumme’s circumstances is mooted on
appeal.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
guarantee certain procedures with respect to
their admission. Therefore, plaintiffs’ due
process claim must also be dismissed.
18 F. Supp. 2d at 60, aff’d, 199 F.3d 1352 (D.C. Cir. 2000).
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