Ponta-Garcia v. Atty Gen USA (3d Cir. 2/20/09)
BARRY Sloviter Siler
The 3d Cir joined a bevy of other courts in upholding the reinstatement of removal regulations against statutory and constitutional challenges. [Ugh.] But where the Petitioner presented substantial evidence suggesting that (a) his earlier removal order may well have been overturned, and (b) he had not reentered illegally, but had reentered on a validly issued LPR card, that the Agency had to look at all the issues again.
In most cases, a reinstatement determination will be simple, and the underlying grounds for reinstatement (the existence of an order of removal, identity confirmation, and the fact of illegal reentry) will not be contested. However, in circumstances such as these, where the alien claims that he contested the bases for reinstatement and offered some support for why he may be correct, the regulation requires that the immigration officer “consider [the alien’s] evidence” and “attempt to verify an alien’s claim.” 8 C.F.R. § 241.8(a)(3). As the government tells us in its brief on appeal, “ICE has the necessary expertise to determine the validity of Petitioner’s assertions.” (Respondent’s Br. 25.) Assuming that Ponta-Garcia contested before the immigration officer the notice of intent to reinstate the prior order of removal, more is required than it appears was done here.
[Ok, I think this decision stinks. In cases where the Petitioner presents serious, non-frivolous arguments that he either didn't have a prior removal order or didn't illegally reenter the country, how can it be constitutionally sufficient to have ICE adjudicate that in a non-adversarial process, decided by non-attorneys (let alone Immigration Judges)? And while the alien is granted the right to make a statement, is he given the right to present other evidence? Can he cross-examine evidence presented against him? Is he given notice of the availability of free legal advice? Granting that Due Process might not support facial invalidation of the regulation as to most reinstatement cases, does it not seem troubling as applied to these facts? Nor does it seem satisfactory to say that there is judicial review afterwards, since there is no requirement that the alien be advised of the right to make such an appeal, and judicial review is severely limited. How could you make a good record for such a case? Clearly, the 3d cir just went along with a bunch of other circuits, but the whole thing stinks - CR]