HEVER MENDOZA LINARES V. MERRICK GARLAND, No. 20-71582 (9th Cir. 2023)

Court Description: Immigration The panel denied a petition for rehearing en banc after a request for a vote on whether to rehear the matter en banc, and the matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration, in a case in which the panel held that: (1) subject only to a very limited form of habeas corpus review that is inapplicable in this case, § 242 of the Immigration and Nationality Act (“INA”), see 8 U.S.C. § 1252, “clearly and unambiguously” precludes judicial review of expedited removal orders, even with regard to constitutional challenges to such orders; and (2) as applied in this case—which involved an arriving alien with no previous ties to the United States—that denial of all judicial review was constitutional.

Concurring in the denial of rehearing en banc, Judge Collins wrote briefly only to respond to certain points made in the Statement disagreeing with the court’s decision not to rehear this case en banc.

Judge Collins explained that in examining the structure of the expedited removal system, the panel majority properly focused on the only class of aliens whom Congress itself automatically subjected to that system, namely, aliens “arriving in the United States.” Judge Collins wrote that the Attorney General’s decision, under INA § 235(b)(1)(A)(iii)(I), to extend the expedited removal system—with its lack of judicial review—to additional aliens (i.e., beyond arriving aliens) may raise different constitutional questions. But the fact that such extensions are authorized (within limits) under the statute and may raise distinct constitutional issues provides no basis for failing to acknowledge the statute’s unambiguous denial of judicial review of expedited removal orders. As the Supreme Court has stated, and the panel majority noted, courts cannot press statutory construction to the point of disingenuous evasion even to avoid a constitutional question. Where, as here, Congress has clearly and comprehensively sought to bar judicial review, its intent must be respected even if a difficult constitutional question is presented.

Judge Collins noted that the Statement argues that if and when the court is presented with a purported petition for review of an expedited removal order involving a non- arriving alien, it will be constrained to find the statute unconstitutional as applied in such cases. Judge Collins wrote that because that issue was not before the panel and was not decided by it, it remains open for another case and another day.

In a Statement respecting the denial of rehearing en banc, Judge Berzon, joined by Chief Judge Murguia and Judges Graber, Wardlaw, W. Fletcher, Gould, Paez, Christen, Koh, Sung, Sanchez, Mendoza, and Desai, agreed with Judge Graber’s comprehensive dissent as to why the panel’s statutory construction is improper in light of the constitutional avoidance principle of statutory construction. Judge Berzon also agreed that arriving aliens have some due process rights. Judge Berzon wrote only to underscore the panel majority’s fundamental misunderstanding of who can be subject to expedited removal, an error that entirely undermines the opinion’s statutory interpretation and will guarantee the statute’s unconstitutional application to a large group of noncitizens.

Judge Berzon explained that the majority’s conclusion that no unconstitutional application will result from its interpretation of 8 U.S.C. § 1252 turns a blind eye to the legal and practical actual reach of the expedited removal statute.

The expedited removal statute must be applied to noncitizens “who [are] arriving” and can be applied to any other noncitizen who has not been “physically present in the United States continuously for the 2-year period immediately prior” to a determination of inadmissibility. 8 U.S.C. § 1225(b)(1)(i), (iii)(II). The majority’s statutory construction nonetheless rests at several junctures on Congress’s purported awareness that expedited removal proceedings apply only to arriving noncitizens, whom the majority concludes wrongly, possess no constitutional rights. Judge Berzon wrote that once that error is corrected, it becomes apparent that the majority opinion’s twin premises—that the constitutional avoidance principle does not apply, and that Congress crafted the statute on the understanding that the noncitizens affected had no rights to due process under the federal Constitution—cannot stand.

And without those premises, the majority’s interpretation of the INA’s expedited removal judicial review provisions as banning all review of constitutional claims collapses as well.

This opinion or order relates to an opinion or order originally issued on October 24, 2022.