Guerrier v. Garland, No. 20-70115 (9th Cir. 2021)
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Guerrier, a citizen of Haiti, does not speak English. Guerrier entered the U.S. unlawfully. He was apprehended and issued an expedited removal order. He was referred to an asylum officer for a credible fear interview, during which he agreed to proceed without an attorney. After the interview, he asked for a list of lawyers. The asylum officer found that Guerrier failed to establish a credible fear of persecution. Guerrier requested review by an immigration judge (IJ). Guerrier appeared without counsel, stating that he had not received a list of lawyers. The IJ stated that he was not entitled to representation and that he had already received the list of attorneys as an attachment to the paperwork for the review. Guerrier responded, “Maybe I did not see it. I don’t know if it’s the fact that I don’t speak English that I don’t understand it ... I don’t understand what’s going on.” The IJ responded, “that’s not something that I can control,” and proceeded with the hearing, ultimately agreeing with the negative credible fear decision. He entered an order for expedited removal.
Guerrier acknowledged that courts typically lack jurisdiction to review direct challenges to expedited removal orders but argued that he raised a colorable constitutional claim. The Ninth Circuit dismissed his petition for review. The Supreme Court’s 2020 “Thuraissigiam” holding abrogated any “colorable constitutional claim” exception to the jurisdictional limits on reviewing challenges to expedited removal orders, 8 U.S.C. 1225(b)(1)(B)(iii)(I).
Court Description: Immigration Dismissing for lack of jurisdiction Anthony Guerrier’s petition for review of an immigration judge’s negative credible fear determination, which resulted in an order for his expedited removal, the panel held that there is no colorable constitutional claim exception to the limits Congress placed on the court’s jurisdiction to review challenges to expedited removal orders. As an initial matter, the panel concluded that Guerrier raised a colorable constitutional claim that the Government deprived him of his statutory right to counsel. The panel explained, however, that although this court’s prior opinions have suggested that colorable constitutional claims may form a basis for jurisdiction, the Supreme Court’s decision in DHS v. Thuraissigiam, 140 S. Ct. 1959 (2020), abrogated any such exception to the limits Congress placed on judicial review, through 8 U.S.C. § 1252(a)(2)(A) and 8 U.S.C. § 1252(e), to challenges to expedited removal orders. Thus, the court held that it lacked jurisdiction to consider Guerrier’s petition for review. GUERRIER V. GARLAND 3
The court issued a subsequent related opinion or order on November 9, 2021.
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