Singh v. Barr, No. 19-70932 (9th Cir. 2020)
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The Ninth Circuit dismissed, based on lack of jurisdiction under 8 U.S.C. 1252, petitions for review of the IJ's decisions concluding that petitioners lacked jurisdiction to reopen credible fear proceedings under 8 C.F.R. 1208.30(g)(2)(iv)(A). The panel first observed that judicial review of an expedited removal order, including the merits of a credible fear determination, is expressly prohibited by section 1252(a)(2)(A)(iii). The panel then recognized that it has routinely exercised jurisdiction under section 1252 to review IJ denials of motions to reopen certain removal proceedings. However, the panel concluded that the language of section 1252 clearly and convincingly demonstrates that Congress intended to circumscribe judicial review of motions to reopen credible fear determinations.
In this case, petitioners repeatedly stress that they are not asking the panel to review the merits of the IJs' credible fear determinations. Instead, petitioners ask the panel to exercise jurisdiction to review the IJs' denials of motions to reopen on the grounds that the IJs misconstrued their authority to do so under section 1208.30(g)(2)(iv)(A). This the panel cannot do. The panel has held that where Congress explicitly withdraws its jurisdiction to review a final order of deportation, its authority to review motions to reconsider or to reopen deportation proceedings is thereby likewise withdrawn. Read together, sections 1252(a)(2)(A), (D) and 1252(e) provide clear and convincing evidence that Congress intended to deprive circuit courts of appeals of jurisdiction to review expedited removal orders and related matters affecting those orders, including underlying negative credible fear determinations and rulings on the regulations implementing the expedited removal statute. The panel was without jurisdiction to review the petitions for review and rejected petitioners' remaining arguments to the contrary.
Court Description: Immigration. The panel dismissed for lack of jurisdiction, under 8 U.S.C. § 1252, Manjinder Singh and Kulwant Singh’s petitions for review of separate immigration judge decisions concluding that they lacked jurisdiction to reopen credible fear proceedings under 8 C.F.R. § 1208.30(g)(2)(iv)(A). The panel observed that judicial review of an expedited removal order, including the merits of a credible fear determination, is expressly prohibited by § 1252(a)(2)(A)(iii). Petitioners stressed that they were not asking this court to review the merits of the IJs’ credible fear determinations, but instead were asking the court to exercise jurisdiction to review the IJs’ denials of motions to reopen on the grounds that the IJs misconstrued their authority to do so under 8 C.F.R. § 1208.30(g)(2)(iv)(A). The panel concluded that it could not do so, explaining that where Congress explicitly withdraws jurisdiction to review a final order of deportation, * The Honorable Richard G. Stearns, United States District Judge for the District of Massachusetts, sitting by designation. SINGH V. BARR 3 authority to review motions to reconsider or to reopen deportation proceedings is thereby likewise withdrawn. While recognizing that § 1252(e) authorizes some judicial review of expedited removal orders and policies and procedures, the panel concluded that it did not provide jurisdiction over petitioners’ specific challenges. The panel noted that in Ayala v. Sessions, 855 F.3d 1012 (9th Cir. 2017), and Bartolome v. Sessions, 904 F.3d 803 (9th Cir. 2018), this court determined that it had jurisdiction to consider an IJ’s denial of motions to reopen or reconsider, but the panel concluded that those cases were distinguishable, because they involved review of reasonable fear determinations in the context of a reinstatement of a prior removal order under 8 U.S.C. § 1231(a)(5), rather than a credible fear determination under § 1225(b)(1). The panel also concluded that 8 U.S.C. § 1252(a)(2)(D), which re-vests the court with jurisdiction to hear certain constitutional claims or questions of law, did not apply, because that provision provides jurisdiction to review claims otherwise barred under § 1252(a)(2) Subparagraphs (B) or (C), or those barred by provisions other than § 1252, but by its own terms does not cover claims barred by Subparagraph (A), which was the provision that applied in this case. The panel explained that even a decision that might appear to fall within Subparagraphs (B) or (C) is not reviewable under § 1252(a)(2)(D) if it is subject to a separate prohibition of Subparagraph (A). The panel noted that petitioners’ Suspension Clause challenge was foreclosed by Department of Homeland Security v. Thuraissigiam, 140 S. Ct. 1959 (2020). 4 SINGH V. BARR
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