Guerrier v. Garland

18 F.4th 304

Anthony GUERRIER, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 20-70115

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 28, 2021 Pasadena, California

Filed August 16, 2021

Amended November 9, 2021

Rajan O. Dhungana (argued), Federal Practice Group, Las Vegas, Nevada, for Petitioner.

Neelam Ihsanullah (argued), Trial Attorney; Anthony C. Payne, Assistant Director; Brian M. Boynton, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Noor Zafar, Lee Gelernt, and Anand Balakrishnan, American Civil Liberties Union Foundation, Immigrants' Rights Project, New York, New York; Cody Wofsy, American Civil Liberties Union Foundation, Immigrants' Rights Project, San Francisco, California; for Amicus Curiae American Civil Liberties Union.

Brian C. Baran, Reichman Jorgensen Lehman & Feldberg LLP, Washington, D.C.; Kate Falkenstien, Reichman Jorgensen Lehman & Feldberg LLP, Redwood Shores, California; for Amicus Curiae Hever Alberto Mendoza Linares.

Before: Milan D. Smith, Jr. and John B. Owens, Circuit Judges, and Eduardo C. Robreno,^* District Judge.

Opinion by Judge Robreno

ORDER

The opinion filed August 16, 2021 (Docket Entry No. 45), and reported at 8 F.4th 1066, is amended by the Amended Opinion filed in its place concurrently with this order.

With these amendments, the full court has been advised of the petition for rehearing en banc, and no judge of the court has requested a vote on it. Fed. R. App. P. 35. The panel unanimously votes to deny the petition for panel rehearing. Judge M. Smith and Judge Owens vote to deny the petition for rehearing en banc, and Judge Robreno so recommends.

Accordingly, the petition for panel rehearing and the petition for rehearing en banc are DENIED. No further petitions for rehearing will be accepted.

ROBRENO, District Judge

Petitioner Anthony Guerrier seeks review of an immigration judge's negative credible fear determination, which resulted in an order for his expedited removal. He acknowledges that we typically lack jurisdiction to review direct challenges to expedited removal orders but argues we have jurisdiction to review his petition because he raises a colorable constitutional claim.

Although our prior opinions have suggested that such claims may form a basis for our jurisdiction, the Supreme Court's decision in DHS v. Thuraissigiam, ––– U.S. ––––, 140 S. Ct. 1959, 1964, 207 L.Ed.2d 427 (2020), abrogated the "colorable constitutional claim" exception to the limits Congress placed on our jurisdiction to review challenges to expedited removal orders under the facts of this case. Accordingly, we dismiss the petition for review for lack of jurisdiction.

I.

A.

Under the applicable statutory provisions, noncitizens who lack valid entry documents at the time of their arrival to the United States are deemed "removable." See DHS v. Thuraissigiam, ––– U.S. ––––, 140 S. Ct. 1959, 1964, 207 L.Ed.2d 427 (2020) (quoting 8 U.S.C. §§ 1182, 1229a(e)(2)(A) ). The standard removal process involves three levels of review: an evidentiary hearing before an immigration judge, an appeal to the Board of Immigration Appeals, and review in a federal court of appeals. Id. (citing §§ 1229a(c)(5), 1252(a) ).

However, Congress has provided expedited removal procedures for certain noncitizens, including those who (1) are "inadmissible because [they] lack[ ] a valid entry document," (2) have not "been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility," and (3) are "among those whom the Secretary of Homeland Security has designated for expedited removal." Id. at 1964–65 (quoting § 1225(b)(1)(A)(i), (iii)(I)–(II) ). "Once ‘an immigration officer determines’ that a designated applicant ‘is inadmissible,’ ‘the officer [must] order the alien removed from the United States without further hearing or review.’ " Id. at 1965 (alteration in original) (quoting § 1225(b)(1)(A)(i) ).

"Applicants can avoid expedited removal by claiming asylum. If an applicant ‘indicates either an intention to apply for asylum’ or ‘a fear of persecution,’ the immigration officer ‘shall refer the alien for an interview by an asylum officer.’ " Id. (quoting § 1225(b)(1)(A)(i)–(ii) ). If the asylum officer finds that the applicant has a credible fear of persecution, "the applicant will receive ‘full consideration’ of his asylum claim in a standard removal hearing." Id. (quoting 8 C.F.R. § 208.30(f) ) (citing 8 U.S.C. § 1225(b)(1)(B)(ii) ).

If the officer instead determines that the applicant lacks a credible fear, a supervisor reviews the determination. Id. (citing 8 C.F.R. § 208.30(e)(8) ). If the supervisor agrees with the officer, "the applicant may appeal to an immigration judge, who can take further evidence and ‘shall make a de novo determination.’ " Id. (quoting 8 C.F.R. § 1003.42(c), (d)(1) ) (citing 8 U.S.C. § 1225(b)(1)(B)(iii)(III) ).

If the immigration judge agrees with the asylum officer that the noncitizen does not have a credible fear of persecution or torture, "the case shall be returned to DHS for removal of the alien. The immigration judge's decision is final and may not be appealed." 8 C.F.R. § 1208.30(g)(2)(iv)(A) (2021) ; see also 8 U.S.C. § 1225(b)(1)(B)(iii)(I) ("Subject to [review by an immigration judge upon request], if the officer determines that an alien does not have a credible fear of persecution, the officer shall order the alien removed from the United States without further hearing or review."). However, "the Executive always has discretion not to remove." Thuraissigiam , 140 S. Ct. at 1983 n.28 (citing Reno v. Am.-Arab Anti-Discrimination Comm. , 525 U.S. 471, 483–84, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) ); see also 8 C.F.R. § 208.30(g)(2)(i) (2021) (providing that "DHS ... may reconsider a negative credible fear finding that has been concurred upon by an immigration judge").

In sum, a noncitizen subject to expedited removal "has an opportunity at three levels to obtain an asylum hearing, and the applicant will obtain one unless the asylum officer, a supervisor, and an immigration judge all find that the applicant has not asserted a credible fear." Thuraissigiam , 140 S. Ct. at 1965–66.

B.

Guerrier is a citizen of Haiti. His primary language is Creole, and he does not speak English. Guerrier entered the United States unlawfully in November 2019 and was apprehended by immigration authorities.¹ He was issued an expedited removal order. He expressed fear that he would be persecuted if he were to return to Haiti and was consequently referred to an asylum officer for a credible fear interview.

During his credible fear interview, the asylum officer asked Guerrier whether he had an attorney or consultant. The following exchange occurred:

GUERRIER: For now, I do not have a lawyer, but I would like to have a lawyer help me.

OFFICER: An attorney is not required for this interview. Do you feel comfortable proceeding today without an attorney?

GUERRIER: If it's questions about my life, I can answer; but if it's complicated questions, then I don't know.

OFFICER: This interview is about your fear returning to Haiti. So I will be asking you several questions about why you are afraid to return to Haiti. It is up to you if you would like to proceed w[ith] an attorney.

GUERRIER: I don't have a problem.

OFFICER: So you wish to proceed today w[ithout] an attorney?

GUERRIER: Yes, if you want to give me an attorney.

OFFICER: No sir, I do not have the authority to give you an attorney. This interview is about your fear returning to Haiti. So I will be asking you several questions about why you are afraid to return to Haiti. It is up to you if you would like to proceed w[ith] an attorney.

GUERRIER: Ok, I will answer your questions.

Guerrier proceeded without counsel. At the end of 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. Guerrier appeared at the credible fear review hearing without counsel. At the beginning of the hearing, the immigration judge asked Guerrier if he had any questions. Guerrier stated that he had been told he was going to be given a list of lawyers but had not received such a list. The immigration judge informed Guerrier that he was not entitled to representation and that he had already received the promised list of attorneys as an attachment to the paperwork for the credible fear 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." The immigration judge stated, "Well, sir, according to the [c]ourt's records, the list was provided to you, and that was several days ago. Now, as I said, you have no right to be represented in credible fear review proceedings. There's no right to a lawyer." Guerrier stated, "Well, maybe it's the fact that I don't speak English, I don't understand what's going on, and that's the reason why I did not start looking for a lawyer for my case." The immigration judge responded, "Well, sir, that's not something that I can control." The immigration judge proceeded with the hearing, ultimately agreeing with the asylum officer's negative credible fear decision.

The instant petition for review followed. The Government filed a motion to dismiss the action for lack of subject matter jurisdiction, and Guerrier filed a motion for a stay of removal. We denied the motion to dismiss without prejudice to renewing the arguments and granted the stay of removal.

II.

"We determine our own jurisdiction de novo. " Pena v. Lynch , 815 F.3d 452, 455 (9th Cir. 2016) (citing Bolanos v. Holder , 734 F.3d 875, 876 (9th Cir. 2013) ). "We also review constitutional claims de novo. " Id. (citing Coronado v. Holder , 759 F.3d 977, 982 (9th Cir. 2014) ).

III.

A.

Generally,...