NIJC - 2d Cir upholds reinstatement regs, no collateral attack

2d Cir upholds reinstatement regs, no collateral attack

Tuesday, 08 July 2008

Garcia-Villeda v. Mukasey (2d Cir. 7/8/08)

FEINBERG Jacobs Hall

The 2d Cir upheld the reinstatement of removal regulations (which permit a deportations officer to decide reinstatement, rather than an IJ) against a challenge that they were ultra vires to the statute, under step 2 of Chevron. The CtApp also upheld the regulations against facial and as-applied due process challenges, and (pursuant to its earlier decision in Tenesaca Delgado v. Mukasey, 516 F.3d 65 (2d Cir. 2008)), found no ability to obtain adjudication of I-485 and waiver before reinstatement order was executed.

The Court further refused to permit a collateral attack on the underlying removal order:

This outcome does not offend due process because, “regardless of the process afforded in the underlying order,” reinstatement of the prior deportation order does not alter petitioner’s legal condition. Morales-Izquierdo, 486 F.3d at 497. The statute “does not penalize an alien for the reentry (criminal and civil penalties do that).” Fernandez-Vargas, 548 U.S. at 44. It merely gives effect to a final order issued after a formal hearing before an immigration judge. The purpose is to “stop an indefinitely continuing violation that the alien himself could end . . . by voluntarily leaving the country.” Id. As the Ninth Circuit put it, “[w]hile aliens have a right to fair procedures, they have no constitutional right to force the government to re-adjudicate a final removal order by unlawfully reentering the country.” Morales-Izquierdo, 486 F.3d at 498.

Accord: Lorenzo v. Mukasey, 508 F.3d 1278, 1283-84 (10th Cir. 2007); Morales-Izquierdo v. Gonzales, 486 F.3d 484, 489-95 (9th Cir. 2007) (en banc); De Sandoval v. U.S. Att’y Gen., 440 F.3d 1276, 1280-83 (11th Cir. 2006); Ochoa-Carrillo v. Gonzales, 437 F.3d 842, 846 (8th Cir. 2006); Lattab v. Ashcroft, 384 F.3d 8, 17-20 (1st Cir. 2004); see also Tilley v. Chertoff, 144 F. App’x 536, 539-40 (6th Cir. Aug. 15, 2005) (unpublished).

[Analysis: The decision contains several unfortunate pieces of dicta. In passing, the Court suggested that 240(a)(3) requires a formal hearing "only [for] aliens already admitted to the U.S."; which seems at odds with the text, which says that 240 is the exclusive means ot determining "whether an alien may be admitted to the United States." The Court's decision that it could not employ constitutional doubt pre-Chevron seems at odds with St. Cyr. The due process analysis seems to require that the alien be in unlawful status before and after the reinstatement; but that is an assumption not always true. And most fundamentally, this applicant simply could not show any prejudice, having admitted an unlawful reentry - the rest of the analysis was really just unnecessary. - CR]

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