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