NIJC - 2d Cir. rejects challenge to reinstatement

2d Cir. rejects challenge to reinstatement

Friday, 22 August 2008

Miller v. Mukasey (8/21/08)

PER CURIAM Walker, Cabranes, Raggi

The 2nd Circuit considered this PFR in which petitioner argued that the procedure for reinstating a prior order of removal (1) is not authorized by statute, and (2) violated his right to due process. The court disposed of both claims, relying heavily on its decision earlier this year in Garcia-Villeda v. Mukasey, 531 F.3d 141 (2nd Cir. 2008). In addition to citing Garcia-Villeda, the court held that petitioner here, who had elected not to contest the predicate facts underlying the reinstatement order before the agency or in his petition (rather than conceding them as had the petitioner in Garcia-Villeda), could not claim that the procedures in place violated his due process rights. Petition for review denied.

More below the jump.

Read opinion here:

Petitioner, a native of Jamaica, was ordered removed in 1989 and then came back to the U.S. in 2000. Petitioner was served an I-871 Notice of Intent/Decision to Reinstate his prior order in February 2006. Petitioner did not contest DHS's determination by making any statement to the immigration officer, and the order was reinstated in March 2006. Petitioner subsequently filed this PFR of the agency's decision.

The court rejected petitioner's argument that the AG had exceeded its authority under 8 U.S.C. § 1231(a)(5), the reinstatement statute, by promulgating 8 C.F.R. § 241.8, the reinstatement regulations, which permit immigration officers to reinstate prior orders without a hearing. The court found its prior on point decision in Garcia-Villeda v. Mukasey, 531 F.3d 141, to be controlling, where it had accorded Chevron deference to the regs and found that the regs were a reasonable construction of the statute.

The court also rejected petitioner's due process argument, in which petitioner argued that he had suffered prejudice by being deprived of a meaningful opportunity for judicial review of the reinstatement decision and judicial review of the prior deport order. The court found that petitioner could not show that the reinstatement procedure had caused him any prejudice.

"Miller does not claim, however, that he is not subject to a prior order of removal. Indeed, he does not challenge any of the predicate facts underlying the reinstatement order—namely, that he is (1) an alien who has (2) reentered the United States illegally after (3) having been removed or having departed voluntarily under an order of removal. See 8 U.S.C. § 1231(a)(5). Because “all of the facts necessary to warrant reinstatement” remain uncontested, Miller has “fail[ed] to demonstrate how the alleged shortcomings[of the reinstatement procedure] have prejudiced the outcome of his case.” Garcia-Villeda, 531 F.3d at 149 (internal quotations marks and citation omitted)."

In particular, the court found that it made no difference to petitioner that, unlike the petitioner in Garcia-Villeda, he had - rather than conceding - elected not to contest the predicate facts underlying the reinstatement order before the agency or in his petition. Rather, there was no meaningful difference between conceding and choosing not to contest the predicate facts.

"For the purposes of determining whether a due process violation has
occurred, however, we see no meaningful difference between conceding the predicate facts, on the one and, and choosing not to contest them, on the other. In both cases, the petitioner cannot show that he reinstatement procedure has caused him any prejudice, and, in the absence of prejudice, '[w]e . . . need not determine the constitutional adequacy of the existing procedures.'"

The court thus found that, since he had not challenged the findings at the agency level, i.e., had not exhausted administrative remedies, he could not complaint that the reinstatement procedures violated due process, . The court likened this scenario to automatic rescission of LPR status when an alien has failed to respond in a proper and timely manner, which was upheld as not violating due process in Ali v. Reno, 22 F.3d 442, (2d Cir. 1994). The court went on to hold:

"Accordingly, we now hold that when an alien declines to challenge at the agency level the findings that support reinstatement of a prior order of removal, he has no grounds to complain in court that the reinstatement procedures deprived him of the due process of law."

Finally, the lack of a forum to collaterally attack the 1989 order also did not offend due process:

"Miller also faults the reinstatement procedure for not providing him a forum to collaterally attack the 1989 order of removal. Miller’s challenge to his prior order of removal appears to be premised on a claim that he “was married to a United States [c]itizen at the time that he was placed in the deportation proceedings.” Pet’r’s Br. at 20. Such a challenge cannot be raised in reinstatement proceedings because “the reinstatement of removal statute expressly prohibits us from giving petitioner a second bite at the apple.” Garcia-Villeda, 531 F.3d at 150. Pursuant to 8 U.S.C. § 1231(a)(5), a “prior order of removal . . . is not subject to being reopened or reviewed” in reinstatement proceedings. As Judge Feinberg observed, this provision “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.” Id. (internal quotation marks and citation omitted)."

PFR denied.

Atty: Anne E. Doebler, Buffalo, NY.

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