MENG LI V. EDDY: 9TH CIRCUIT DISMISSES HABEAS PETITION CHALLENGING EXPEDITED REMOVAL
Immigrants' Rights Update, Vol. 15, No. 6, Oct. 8, 2001

In an important case of first impression, the Ninth Circuit Court of Appeals held that it lacks jurisdiction to review the merits of an expedited removal order and affirmed a federal district court's dismissal of a Chinese businesswoman's habeas corpus petition.

Using a B1 (business) visa that she had previously used to enter the U.S., Meng Li attempted to travel to New York in June 1997. At an interim stop in Anchorage, Alaska, the Immigration and Naturalization Service detained Li after it determined that she had attempted to enter the U.S. through fraudulent means. The determination subjected Li to expedited removal, and she was consequently ordered removed and barred from entering the country for five years. Alleging that her entry was lawful, Li filed a habeas corpus petition in federal district court. She sought an order admitting her into the U.S. and voiding the five-year bar. Ruling that it lacked jurisdiction to review expedited removal orders, the district court dismissed Li's habeas petition. Li then filed an appeal with the Ninth Circuit.

Created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), expedited removal applies to individuals who misrepresent themselves or present fraudulent documents in attempting to enter the U.S. Under expedited removal, the INS may issue nonreviewable orders of removal against such persons, who are then barred from returning to the U.S. for five years.

As the Ninth Circuit noted, the IIRIRA provides for very limited judicial review of expedited removal orders. Habeas corpus review is restricted to questions about (1) whether the petitioner is an alien, (2) whether the petitioner was removed under the statutory provision (8 U.S.C. § 1225(b)(1)) authorizing expedited removal, and (3) whether the petitioner can prove that he or she is a lawful resident or has been admitted as a refugee or granted asylum. The Ninth Circuit found that such issues were irrelevant to Li, who only wished to challenge the INS's determination that she had attempted to enter the U.S. fraudulently, triggering the applicability of section 1225(b)(1). However, the court noted, the IIRIRA permits judicial review only to examine whether 1225(b)(1) was invoked at all, and not whether it was properly invoked. Therefore, the court held, its inquiry is limited to whether a removal order "in fact was issued and whether it relates to the petitioner." Because Li contested neither issue, the district court acted properly in dismissing the habeas petition for failing to raise any issue within its authority to review, the appeals court ruled.

In reaching its ruling, the Ninth Circuit noted that Congress clearly intended to limit habeas authority for judicial review of expedited removal orders. In doing so, it distinguished the case before it from Magana Pizano v. INS, 200 F.3d 603 (9th Cir. 1999). Unlike Li's case, Magana Pizano involved the challenge of an ordinary removal order. There, the Ninth Circuit held that because Congress had not explicitly restricted it, the more general habeas review under 28 U.S.C. 2241 remains available.

The Ninth Circuit also dismissed Li's due process claims. Citing the Supreme Court's holding in U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950), the court held that since Li is a nonresident alien who had not secured legal admission to the U.S., she has no constitutional basis to challenge her removal.

Judge Hawkins issued a lengthy dissent, in which he questioned his colleagues' reading of the IIRIRA provisions limiting judicial review of expedited removal. If the majority's reading is correct, Hawkins wrote, then it "means that [the] INS can issue an expedited removal order for any alien seeking to enter the U.S. (other than a permanent resident, refugee, or asylum-seeker) for any reason, including clearly improper grounds such as racial or ethnic bias, and the courts cannot review the legal basis of that order." On the contrary, he asserted, a careful reading of the statutory provisions regarding review "grounded in the overall expedited removal provisions of the IIRIRA," in concert with Ninth Circuit precedent interpreting similar review provisions, leads to the opposite conclusion. Hawkins also noted that local INS agents' errors likely led to the application of expedited removal against Li, and "not any misconduct by [her]."

Meng Li v. Eddy, 259 F.3d 1132 (9th Cir. Aug. 8, 2001).