finding that a passport stamp provided by border patrol agents was not evidence of “authorized” reentry for previously deported alien
How later courts described this case
- finding that a passport stamp provided by border patrol agents was not evidence of “authorized” reentry for previously deported alien
- denying a petition for review of a reinstatement decision based on the alien’s failure to point out evidence that undermines the immigration officer’s determination of illegal reentry
- previously removed alien who reentered under new, married name and received passport stamp but did not obtain necessary permission from Attorney General, reentered unlawfully and was subject to reinstatement
- alien could only i'eenter lawfully with Attorney’s General’s permission, citing § 1182(a)(9); passport stamp indicating she had been “admitted” was not evidence of Attorney General’s consent
Written by the judges who cited it.
The opinion
Case: 08-60494 Document: 00511168853 Page: 1 Date Filed: 07/09/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 9, 2010
No. 08-60494 Lyle W. Cayce
Clerk
FRANCES ANDERSON,
Petitioner
v.
JANET NAPOLITANO, SECRETARY, DEPARTMENT OF HOMELAND
SECURITY,
Respondent
Petition for Review of an Order
of the Department of Homeland Security
Before STEWART, DENNIS, and HAYNES, Circuit Judges.
DENNIS, Circuit Judge:
Petitioner, Frances Anderson (“Anderson”), seeks review of the
Department of Homeland Security’s (the “Department”) reinstatement of a
removal order against her pursuant to 8 U.S.C. § 1231(a)(5). She argues that
her petition should be granted because the administrative record fails to
establish the necessary predicates for reinstatement of the removal order. We
conclude that the record is sufficient and DENY the petition.
I.
The facts of this case are undisputed. Anderson, a citizen of Nigeria,
originally immigrated to the United States in 1982. Within three years of her
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No. 08-60494
entry she was convicted of two crimes, theft and criminal mischief. As a result,
an immigration judge ordered her deportation. See 8 U.S.C. § 1227(a)(2)(A)(ii)
(“Any alien who at any time after admission is convicted of two or more crimes
involving moral turpitude, not arising out of a single scheme of criminal
misconduct, regardless of whether confined therefor and regardless of whether
the convictions were in a single trial, is deportable.”). The Board of Immigration
Appeals dismissed her appeal. Accordingly, in 1994, Anderson agreed to self-
deport from the United States.
In 1996, Anderson reentered the United States under a Nigerian passport
issued under her new, married, name. At her point of entry, she received an
immigration stamp in her passport indicating that she was “admitted” by an
immigration official.
In 2008, the Government began proceedings against Anderson seeking to
reinstate the earlier removal order against her. 8 U.S.C. § 1231(a)(5) allows an
alien to “be removed under the prior [removal] order at any time after the
reentry,” but only “[i]f the Attorney General finds that [the] alien has reentered
the United States illegally after having been removed or having departed
voluntarily, under an order of removal.” In particular, the implementing
regulation for the statute indicates that before reinstating a removal order an
immigration officer must determine that: (1) “the alien has been subject to a
prior order of removal”; (2) “the alien is in fact an alien who was previously
removed, or who departed voluntarily under an order of exclusion, deportation
or removal”; and (3) “the alien unlawfully reentered the United States.” 8 C.F.R.
§ 241.8(a).
A Department of Homeland Security official found that Anderson qualified
for reinstatement of the removal order against her and she was deported.
Anderson was not allowed to appeal this determination internally. 8 C.F.R.
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No. 08-60494
§ 241.8(a) (“The alien has no right to a hearing before an immigration judge in
such circumstances.”). Accordingly, Anderson petitioned this court for review.
She argues that the administrative record is insufficient to support the
Department’s required finding that she reentered the United States illegally.
The only evidence in the record supporting that Anderson unlawfully reentered
is a document titled “Notice of Intent/Decision to Reinstate Prior Order.” This
document asserts that an immigration official “reviewed all available evidence,
the administrative file and any statements made or submitted in rebuttal” and
concludes that Anderson “is subject to removal through reinstatement of the
prior order, in accordance with” 8 U.S.C. § 1231(a)(5).
Anderson acknowledges that the only way in which she could have
reentered the country lawfully was if she had first received permission from the
Attorney General to apply for readmission. See 8 U.S.C. § 1182(a)(9). She does
not argue on appeal, nor does she indicate that she claimed below, that she
obtained such permission. Instead, Anderson emphasizes that the Department
failed to address the “admitted” stamp in her passport. This stamp, she claims,
required the Department to make further factual findings before reinstating the
prior order of removal.
The Department counters that Anderson’s passport stamp does not
suggest Anderson lawfully reentered and thus the administrative record is
sufficient to reinstate the removal order.
II.
No decision of this court describes how we review challenges to the
sufficiency of the administrative record supporting reinstatement of an order of
removal. However, 8 U.S.C. § 1252 provides us jurisdiction to review “orders of
removal” and a “[s]cope and standard of review” for such a proceeding. Circuit
precedent has held that we have jurisdiction to “to hear [a] petition for review
of the reinstatement order” by analogizing “removal orders” to “reinstatement
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No. 08-60494
orders” and concluding that because 8 U.S.C. § 1252 provides us jurisdiction over
the former, it also does so over the latter. Ojeda-Terrazas v. Ashcroft, 290 F.3d
292, 295 (5th Cir. 2002) (“Turning to the issue at hand, a reinstatement order is
not literally an ‘order of removal’ because it merely reinstates a previously
issued order of removal or deportation. Nevertheless, reinstatement of
Ojeda-Terrazas’ previous deportation order is a final order of the INS. A fair
interpretation of § 242 [8 U.S.C. § 1252] grants this court the authority to review
the lawfulness of the reinstatement order.”). In light of this precedent, we
conclude that our scope or standard of review of reinstatement orders must be
consistent with that articulated in § 1252 for removal orders. See id. Such a
holding is supported by our sister circuits, which have stated that their review
of a reinstatement order is limited by the scope and standards set forth in
§ 1252. See Ochoa-Carrillo v. Gonzales, 437 F.3d 842, 843 (8th Cir. 2006) (“Our
review is limited to the agency’s certified administrative record. See 8 U.S.C.
§ 1252(b)(4)(A).”); Bejjani v. I.N.S., 271 F.3d 670, 674 (6th Cir. 2001) (“This
Court has jurisdiction over Bejjani’s petition for review pursuant to INA
§ 242(b), 8 U.S.C. § 1252(b) [listing “Requirements for review of orders of
removal”], which authorizes the courts of appeals to review orders of removal.
This provision also applies to orders of reinstatement.”), overruled on other
grounds by Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006); Batista v.
Ashcroft, 270 F.3d 8, 14 (1st Cir. 2001) (relying on the standards set forth for the
“Treatment of nationality claims” in § 1252(b)(5) when considering a challenge
to a reinstatement order based on a claim that the alien was a United States
citizen).
Therefore, except with regard to “nationality claims,” which are governed
by a different subsection of the statute, our “scope and standard for review” for
challenges to the sufficiency of the administrative record supporting the
reinstatement of a removal order includes:
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No. 08-60494
(A) the court of appeals shall decide the petition only on the
administrative record on which the order of removal is based,
(B) the administrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the
contrary,
(C) a decision that an alien is not eligible for admission to the
United States is conclusive unless manifestly contrary to law, and
(D) the Attorney General’s discretionary judgment whether to grant
relief under section 1158(a) of this title shall be conclusive unless
manifestly contrary to the law and an abuse of discretion.
8 U.S.C. § 1252(b)(4). These rules are sufficient to resolve the instant case.
III.
As a threshold matter, we agree with the Department that Anderson’s
1996 passport stamp does not suggest Anderson lawfully reentered. The
passport stamp, which simply indicates she was admitted through an
immigration check point, is not evidence that the Attorney General consented
to Anderson applying for readmission. See 8 U.S.C. § 1225 (providing
immigration officers’ powers of inspection and not listing the power to consent
on behalf of the Attorney General to an alien applying for readmission). See also
United States v. Trevino-Martinez, 86 F.3d 65, 68 (5th Cir. 1996) (“Typically, an
alien obtains such consent by securing a written authorization from the
Immigration and Naturalization Service . . . permitting him to reenter this
country.”); United States v. Gay, 7 F.3d 200, 200-01 (11th Cir. 1993) (noting that,
although the defendant was mistakenly allowed to reenter the United States
through an immigration check point, the reentry was illegal because the
defendant had not obtained permission from the Attorney General to reenter the
United States). Therefore, the stamp neither establishes that Anderson lawfully
reentered nor requires the Department to perform further factual findings before
reinstating the removal order. See 8 C.F.R. § 241.8(a)(3) (noting that an
immigration officer is required to “attempt to verify” that an alien was not
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No. 08-60494
lawfully admitted only when the alien is able to assert a “claim . . . that he or she
was lawfully admitted”).
Because Anderson neither points to nor produced any other evidence
demonstrating that the Department’s finding of fact was inaccurate, we are
compelled to deny the petition. The administrative record clearly asserts that
based on the evidence before her, the immigration officer found that Anderson
satisfied each condition required for reinstatement of an order of removal,
including that she unlawfully reentered. Under the “scope and standard of
review” dictated by 8 U.S.C. § 1252(b)(4)(B), we are bound to hold this finding
“conclusive unless any reasonable adjudicator would be compelled to conclude
to the contrary.” While nothing in the administrative record supports the
Department’s finding, nothing introduced before the Department or on appeal
contradicts it either. Without some affirmative evidence undermining this
finding, our hands are tied.
IV.
For the foregoing reasons, we DENY Anderson’s petition.
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