Opinion
4:01CV3180
December 11, 2001
Petitioner's Counsel: Bart A. Chavez, Omaha, NE.
Respondents' Counsel: Robert L. Holman, Assistant United States Attorney, Omaha, NE; Paul D. Boeshart, Assistant United States Attorney, Lincoln, NE; Paul R. Stultz, Immigration Naturalization Service, Omaha, NE.
MEMORANDUM AND ORDER
A citizen of Mexico, Flavio Diaz De Leon (the petitioner) has filed a petition for writ of habeas corpus under 28 U.S.C. § 2241. He also seeks a declaratory judgment. He wants to return to, and stay in, the United States where he has lived for many years.
The petitioner was in the United States in the custody of the government when I stayed removal. However, the petitioner was removed before word of my stay could be communicated to the officers having actual control of him. After that, the government and the petitioner stipulated that he may return to this country for the sole purpose of litigating this case, but he must remain in the custody of the government. (Filing 5.) The defendant has elected to remain in Mexico rather than return to this country and go to jail. Given the violation of my stay order and the government's stipulation, the respondents have not contended that the physical location of the petitioner in Mexico moots this case or otherwise deprives this court of jurisdiction. I compliment the government for fairly rectifying the inadvertent violation of my stay order.
The petitioner complains that representatives of the United States misinformed him about whether he could travel from this country to Mexico on an expired worker's permit. After the petitioner went to Mexico, he flew back to the United States. At the Denver airport, he was barred from entry because he lacked the proper documents.
Concluding that the scope of review is very narrow, I grant the government's motion for summary judgment. My reasons follow.
I. FACTS
Most of the undisputed material facts are set forth in the government's evidence index. (Filing 11). The petitioner has not complied with the Federal Rules of Civil Procedure or the local rules of practice regarding the assertion of facts in opposition to a motion for summary judgment.See Fed.R.Civ.P. 56(e) and NELR 56.1(b). Nevertheless, I assume, for purposes of the motion for summary judgment, that the facts recited in the petitioner's brief are true. Giving the petitioner that benefit, I find that the undisputed material facts are these:
1. Petitioner is a native and citizen of Mexico.
2. Petitioner lawfully entered the United States on a Special Agricultural Workers (SAW) permit some 15 years ago. When his SAW permit expired, he filed for an extension. However, the extension was denied.
3. While his appeal of the SAW extension denial was pending, and sometime in July of 1999, the petitioner went to the Immigration and Naturalization Service (INS) office in Omaha, Nebraska. He asked if could travel with his SAW permit while the appeal was pending. An unknown INS official or agent advised the petitioner that he could travel. As a result, the petitioner, with his minor child, an American citizen, flew from the United States to Mexico to visit the petitioner's mother, who was ill.
4. While in Mexico, the petitioner's SAW appeal was denied.
5. On September 5, 1999, the petitioner, and his child, arrived at the Denver International Airport. The petitioner attempted to obtain admission into the United States by presenting his expired SAW permit. The petitioner was not in possession of a valid visa, had not been granted advance parole, and he had no claim to United States citizenship. Aside from the expired SAW permit, the petitioner did not otherwise have any claim to legal status in the United States and by that time, the appeal of his request for extension of the SAW permit had been denied.
6. The INS determined that he was not admissible under Section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (INA). Simply put, the petitioner did not have a valid unexpired entry document and no appeal of his status was pending.
8 U.S.C. § 1182(a)(7)(A)(i)(I) (stating, in pertinent part, that "any immigrant at the time of application for admission . . . who is not in possession of a valid unexpired . . . entry document . . . is inadmissible.")
7. Because the petitioner was at a port of entry and was inadmissible for lack of documentation, he was subject to expedited removal under Section 235(b)(1)(A)(i) of the INA. "Expedited removal" means that the immigrant is "removed from the United States without further hearing or review."
8 U.S.C. § 1225(b)(1)(A)(i) (stating, in pertinent part, that arriving aliens who lack documents under section 212(a)(7)(A)(i)(I) are subject to expedited removal.)
Id.
8. At the Denver airport, the petitioner arrived with his 8-year old child. Since there was no one to care for the child if the petitioner was then subjected to "expedited removal," the petitioner was "paroled" into the United States and ordered to appear in Omaha, Nebraska for "deferred inspection" (expedited removal proceedings). Those proceedings were first scheduled for October 12, 1999, and then July 11, 2001.
See 8 C.F.R. § 235.2(a) (2001) ("Parole for deferred inspection."). The petitioner does not contend that this "parole" and "deferred inspection" somehow transformed his status from an alien at the border seeking admission to something else, such as a lawfully admitted alien. He cannot make such an argument because the regulations preclude it. Id. ("Any alien coming to a United States port from a foreign port . . . at which examination under this part was deferred, shall be regarded as an applicant for admission at that onward port.")
9. With his lawyer present, the petitioner appeared for "deferred inspection" on July 12, 2001. On that date, he prepared and signed a "Record of Sworn Statement in Proceedings under Section 235(b)(1) of the Act . . . In the case of: Expedited Removal of Falvio (sic) Diaz De Leon." (Filing 11, Ex. 1.) The petitioner made no claim for asylum and admitted that he had no valid documentation. (Id. at 1-3.)
10. The INS made a determination of inadmissibility, and ordered the petitioner removed under Section 235(b)(1) of the INA. The INS stated: "Immigrant not in possession of valid, unexpired visa, reentry permit, border crossing card and a valid passport on [r] other travel document." (Filing 11, Ex. 4.) The petitioner was specifically found inadmissible under Section 212(a)(7)(A)(i)(I). As a result, the petitioner was removed from the United States on July 12, 2001.
II. ANALYSIS
In order to better understand my decision, it is first helpful to state the arguments of the parties in some detail. This is because those arguments are intricate.
Petitioner's Arguments
The petitioner argues that he should not have been removed even if he was inadmissible since his removal should have been "cancelled" under section 240A(b) of the INA. The petitioner asserts that he is entitled to cancellation of removal because (1) he had been present in the United States for not less than 10 years (before he left for Mexico); (2) he is a person of good moral character; (3) he has not been convicted of any enumerated criminal offenses; and (4) his removal would harm his child who is an American citizen.
Codified at 8 U.S.C. § 1229b(b)(1), the statute states:
Cancellation of removal and adjustment of status for certain nonpermanent residents
(1) In general
The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissable or deportable from the United States if the alien —
(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;
(B) has been a person of good moral character during such period;
(C) has not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title (except in a case described in section 1227(a)(7) of this title where the Attorney General exercises discretion to grant a waiver); and
(D) establishes that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.
Although it is not clear, the petitioner evidently argues that he was removed before he could seek relief under Section 240A(b) or that he was improperly denied relief under that section. In any event, the petitioner seeks habeas corpus relief and a declaration that he is entitled to remain in the United States as an alien lawfully admitted for permanent residence under Section 240A(b) of the INA.
In so doing, he claims that the statutory restrictions regarding the scope of judicial review do not apply to him because of the Supreme Court's decision in INS v. St. Cyr, 121 S.Ct. 2271 (2001). Even if St. Cyr is not applicable, the petitioner asserts that the respondents should be estopped from asserting as a bar the relevant statutes because he was misled by INS officials about his ability to travel to Mexico.
Government's Arguments
The government responds that because the defendant was attempting to enter the United States at Denver from Mexico without valid documentation, he was subject to "expedited removal" and that this court's scope of review of that order is very narrow. In other words, I have no jurisdiction to review the petitioner's claim under Section 240A(b) of the INA. Therefore, since the petitioner was clearly subject to "expedited removal," the government argues that I must grant summary judgment.
The government also asserts that St. Cyr is not applicable because, unlike the alien in that case, the petitioner was not a lawful permanent resident at the time he was excluded. That is, when the petitioner was trying to gain admission at Denver, he had no valid travel documents that would permit him to enter this country. Furthermore, and despite what the petitioner may have been told before he left this country to travel to Mexico, the government argues that it should not be estopped.
My Decision
Although the result may be harsh, I agree with the government. The basis for that decision is set forth below.
Being "On the Outside, Looking In" Triggers a Narrow Scope of Review
As noted earlier, an alien arriving in the United States is subject to expedited removal if that person lacks proper entry documents. Section 212(a)(7) of the INA, 8 U.S.C. § 1182(a)(7). It is undisputed that the petitioner lacked such documents when he arrived at Denver from Mexico. Before he left for Mexico, his SAW permit expired and his request for extension had been denied. After he was in Mexico, the appeal of his extension request was denied. Simply stated, when he presented himself at Denver he had no unexpired document that authorized him to enter the United States.
Section 242 of the INA, 8 U.S.C. § 1252, addresses judicial review for those persons who are at an American port of entry seeking admission. In particular, the statute addresses judicial review of orders under Section 235(b)(1) involving expedited removals like the one here. Section 242(e) of the INA, 8 U.S.C. § 1252(e). Using a writ of habeas corpus, judicial review of an expedited removal order is authorized by the statute, but that review is limited.
Section 242(e)(1) imposes strict limitations on this court's ability to grant declaratory, injunctive or equitable relief. In pertinent part, it provides:
Limitations on relief.
Without regard to the nature of the action or claim and without regard to the identity of the party or parties bringing the action, no court may —
(A) enter declaratory, injunctive, or other equitable relief in any action pertaining to an order to exclude an alien in accordance with section 1225(b)(1) of this title except as specifically authorized in a subsequent paragraph of this subsection . . . .8 U.S.C. § 1252(e)(1)(A).
Section 242(e)(2) authorizes limited habeas corpus review. It provides:
Habeas corpus proceedings.
Judicial review of any determination made under section 1225(b)(1) of this title is available in habeas corpus proceedings, but shall be limited to determinations of —
(A) whether the petitioner is an alien,
(B) whether the petitioner was ordered removed under such section, and
(C) whether the petitioner can prove by a preponderance of the evidence that the petitioner is an alien lawfully admitted for permanent residence, has been admitted as a refugee under section 1157 of this title, or has been granted asylum under section 1158 of this title, such status not having been terminated, and is entitled to such further inquiry as prescribed by the Attorney General pursuant to section 1225(b)(1)(C) of this title.8 U.S.C. § 1252(e)(2).
As a result, the statute expressly limits review to only three questions. First, is the petitioner an alien? Second, was the petitioner removed under section 235(b)(1) of the INA? Third, can the petitioner prove by the preponderance of the evidence that (a) he or she is lawfully admitted for permanent residence and that status has not terminated; (b) he or she has been admitted as a refugee and that status has not terminated; or (c) he or she has been granted asylum and that status has not terminated. Section 242(e)(2)(A)-(C) of the INA, 8 U.S.C. § 1252(e)(2)(A)-(C).
If the other portions of the statute limiting review were not clear enough, Congress has made it plain that the "scope" of review is very narrow in those circumstances where an alien was at the border seeking admission. A part of that same statute states:
Scope of Inquiry
In determining whether an alien has been ordered removed under section 1225(b)(1) of this title, the court's inquiry shall be limited to whether such an order in fact was issued and whether it relates to the petitioner. There shall be no review of whether the alien is actually inadmissable or entitled to any relief from removal.
Section 242(e)(5) of the INA, 8 U.S.C. § 1252(e)(5).
It is clear, then, that the petitioner can obtain no relief under Section 242(e)(2), 8 U.S.C. § 1252(e)(2)(A)-(C). He fails on all three grounds set forth in that statute. The petitioner is an alien. He was removed under Section 235(b)(1)(A)(i) of the INA, 8 U.S.C. § 1225(b)(1)(A)(i). The petitioner was not an alien lawfully admitted for permanent residence, he was not admitted as a refugee, and he had not been granted asylum.
But what about petitioner's claim that he is entitled to relief under Section 240A(b) of the INA, 8 U.S.C. § 1229b(b)(1) ("Cancellation of removal and adjustment of status for certain nonpermanent residents")? Petitioner argues that nothing in that statute precludes judicial review of that question.
While that portion of the INA may not preclude judicial review, it does not provide for it either. More importantly, the statute that does authorize limited judicial review by virtue of a habeas corpus action states that there shall "be no review of whether the alien is . . . entitled to any relief from removal." Section 242(e)(5) of the INA, 8 U.S.C. § 1252(e)(5) (emphasis added). Except for the three areas of inquiry allowed by the statute ((e)(2)(A)-(C)), relief predicated on other claims is expressly barred by that same statute ((e)(1) (e)(5)). Accordingly, Congress has explicitly prohibited me from considering whether the petitioner is entitled to cancellation of removal and adjustment of his status.
The result I reach here is consistent with a recent decision of at least one other court. See Li v. Eddy, 259 F.3d 1132 (9th Cir. 2001) (per curiam) (applying Sections 235(b) and 242(e)(5) of the INA and affirming the dismissal of petition for writ of habeas corpus; given the statutory limitations on habeas review of expedited removal orders, judicial review of the expedited removal order denying a nonresident alien entry at the border into the United States was limited to whether the removal order in fact issued and whether the alien was the subject of the order).
As the Li court stated, while there "is no specific limitation on the availability or scope of habeas corpus review of ordinary removal orders[,]" where an alien is at the border seeking admission, the "statute could not be much clearer in its intent to restrict habeas review." Id. at 1134-35 (citing 8 U.S.C. § 1252(e)(2)). Thus, "the statutory language giving petitioners such as Li a limited grant of habeas corpus jurisdiction expressly precludes us from reviewing whether the petitioner is entitled to admission." Id. at 1135.
In summary, the petitioner was "on the outside, looking in" when he arrived at Denver from Mexico. In that circumstance, my scope of review is limited. Applying that narrow scope of review, the petitioner is not entitled to relief.
St. Cyr Does Not Apply
In the case of INS v. St. Cyr, 121 S.Ct. 2271 (2001), the Supreme Court held that a lawfully admitted alien could use the habeas corpus statute ( 28 U.S.C. § 2241) to contest a deportation order predicated upon the claim that the alien had committed a felony. This was true despite the fact that one of the laws stated: "`Notwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed' certain criminal offenses." Id. at 2285 (quoting 8 U.S.C. § 1252(a)(2)(C)).
The Court distinguished between the terms "judicial review" and "habeas corpus," holding that unless it was clear that Congress intended to limit review by habeas corpus, a statute that prohibited only "judicial review" did not restrict habeas corpus review. The Court found that the absence of a reference to "habeas corpus" or section 2241 in the pertinent statutes indicated that Congress did not intend to preclude such review by habeas corpus. Id. at 2286.
The Court was not required to apply the statute that is at issue in this case. In fact, there is only a passing reference to the statute in a footnote. Id. at 2286 n. 35. Moreover, the Court was dealing with an alien residing in this country "who was admitted to the United States as a lawful permanent resident." Id. at 2275. That is not the case here. Thus, I agree with the Ninth Circuit that St. Cyr is inapplicable to cases like this one where the alien is seeking admission at the border.Li, 259 F.3d at 1135 (St. Cyr did not apply because the alien had not been lawfully admitted).
Furthermore, the rationale of St. Cyr is not applicable. That is, regarding aliens seeking admission at the border, Congress has specifically referenced relief by way of habeas corpus and Congress has expressly limited, but not abrogated, that type of relief. Thus, in this context at least, Congress has done what St. Cyr required. It has explicitly stated why type of review is available in habeas corpus actions.
There is some brief suggestion by the petitioner that the statute violates the Suspension Clause. See Art. I, § 9, cl.2 of the Constitution. This argument is not developed, and so I shall give it short shrift. Put simply, the statute authorizes relief by way of habeas corpus, it does not "suspend" the writ.
To illustrate, the statute authorizes review to decide whether the petitioner is in fact an alien ((e)(2)(A)) or whether the petitioner is in fact a lawfully admitted resident alien ((e)(2)(C)). For an alien at the border, this is a sufficient quantum of judicial review. See, e.g.,Shaughnessy v. Mezi, 345 U.S. 206, 212-15 (1953) (an alien resident of the United States traveled to Hungary and upon his return 19 months later, the Attorney General ordered him permanently excluded at the port of entry without a hearing based upon "information of a confidential nature"; the district court granted habeas corpus relief and paroled the petitioner; the Supreme Court reversed; while habeas corpus review was authorized, the Court treated the petitioner as an "entrant alien for constitutional purposes" and held that the Attorney General could exclude him without a hearing). Cf. St. Cyr, 121 S.Ct. at 2279 (Suspension Clause of the Constitution requires "some" judicial intervention in alien deportation cases).
To the extent the petitioner asserts a due process challenge to the statute, I deny it for the same reason. The statute provided him with all the process he was due.
Estoppel Does Not Apply
The petitioner argues that the government should be estopped from applying the relevant statute because an unknown INS official told him he could travel on his expired SAW permit. Although the question has not been settled, I assume that estoppel may be asserted against the government under certain circumstances. See, e.g., Wellington v. Immigration and Naturalization Service, 710 F.2d 1357, 1360 (8th Cir. 1983) (making that assumption). But even if that is true, there are two fatal problems with the petitioner's estoppel argument.
First, while the petitioner was in Mexico, his SAW permit extension appeal was denied. The petitioner does not contend that the unnamed INS official told him that he could return to the United States if his appeal failed while he was in Mexico. The petitioner does not contend that he even asked that question. Thus, the event that played a material part in his exclusion (denial of the appeal) was not discussed by the petitioner or the INS official. Therefore, there could be no detrimental reliance on a statement that was never made. Estoppel requires detrimental reliance. See, e.g., Zabel v. United States, 995 F. Supp. 1036, 1050, 1052 (D.Neb. 1998) (estoppel against the government requires four things, including detrimental reliance).
Second, estoppel is not appropriate for a more fundamental reason. If "estoppel is available in immigration cases, it can be invoked only if the government is guilty of `affirmative misconduct.'" Wellington, 710 at 1360 (even though an INS official's advice about whether the petitioner needed to change her visa status may have been erroneous, there was no affirmative misconduct because it was based upon a misunderstanding). At most, there was a misunderstanding between the petitioner and the INS official. While the petitioner and the INS official spoke about travel on his expired SAW permit during the pendency of his appeal, the petitioner did not ask and the parties did not discuss what would happen if that appeal was denied while he was out of the country. A muddled exchange like that does not amount to "affirmative misconduct" on the part of the government.
III. CONCLUSION
When an alien presents himself at the border, he may be subjected to "expedited removal." If so, he may seek review by habeas corpus. However, the scope of that review is narrow. Applying that scope of review here, summary judgment must be granted and the petition must be denied.
IT IS ORDERED that the government's motion for summary judgment (filing 10) is granted, and, by separate document, judgment will be entered for the government.
The pleading is phrased in the alternative as a motion to dismiss or for summary judgment. Because I grant the summary judgment portion, the motion to dismiss part is denied as moot.