9th Circuit Finds Habeas Jurisdiction To Consider Constitutional Challenge To Underlying Removal Order In Reinstatement Case

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

9th Circuit finds habeas jurisdiction to consider constitutional challenge to underlying removal order in reinstatement case
Immigrants' Rights Update, Vol. 18, No. 7, November 8, 2004

The U.S. Court of Appeals for the Ninth Circuit has found that a non–U.S. citizen whose prior removal order has been reinstated under section 241(a)(5) of the Immigration and Nationality Act may challenge the constitutionality of the original removal order in federal district court. Ruling on a petition for review of a reinstated removal order, the court found that it was barred by the statute from reviewing the underlying order, but that that bar does not apply to district court habeas jurisdiction. The court therefore transferred the case to district court for consideration of the constitutionality of the removal order.

The petitioner in this case, Sergio Arreola-Arreola, is a Mexican national who first came to the U.S. in 1957, when he was just under two years old. He subsequently became a lawful permanent resident. In 1996 he was convicted in California state court for driving under the influence of alcohol with three prior convictions. Subsequently he was placed in removal proceedings, and in 1998 an immigration judge found Arreola removable for having been convicted of an “aggravated felony.” The IJ also denied his application for cancellation of removal, finding him ineligible due to the aggravated felony conviction. Arreola did not appeal the IJ decision, and he now contends that he unknowingly waived the right to appeal due to ineffective assistance of counsel. Arreola was removed to Mexico and later reentered the U.S.

In Sept. 2000, Arreola was arrested by the Immigration and Naturalization Service and served with a Notice of Intent/Decision to Reinstate Prior Order, Form I‑181. He indicated on the form that he would like to make a statement contesting the reinstatement, but the record in this case does not include such a statement. On the same day that the INS arrested Arreola and served the notice, the INS reinstated the original removal order.

Arreola filed a petition for review with the court of appeals to appeal the reinstatement order. He contended both that he was denied due process in the implementation of the reinstatement procedure and that he was denied due process in the original removal proceeding that resulted in the order on which the reinstatement was based. Arreola also argued that the original removal order was unlawful because his conviction for driving under the influence does not constitute an “aggravated felony.” After Arreola was removed to Mexico, the Board of Immigration Appeals overruled its determination that such offenses are not aggravated felonies. In re Magallanes, 22 I. & N. Dec. 1 (BIA 1998), overruled by In re Ramos,23 I. & N. Dec. 336 (BIA 2002). The Ninth Circuit also has ruled that DUI convictions do not constitute aggravated felonies. Montiel-Barraza v. INS, 275 F.3d 1178 (9th Cir. 2002).

Ruling on the petition for review, the court found that it has jurisdiction to review the reinstatement proceeding, as previously found in Castro-Cortez v. INS, 239 F.3d 1037, 1044 (9th Cir. 2001). However, the court also noted that in Alvarenga-Villalobos v. Ashcroft, 271 F.3d 1169, 1174 (9th Cir. 2001), the Ninth Circuit previously found that the reinstatement procedure comports with due process when the underlying removal proceeding afforded due process to the noncitizen. For this reason, the court found that “Arreola’s challenge to the constitutionality of the reinstatement order necessarily depends on a showing that the underlying removal order is unconstitutional.” The court also followed Alvarenga in rejecting Arreola’s claim that his removal order was unlawful because under current law the offense for which he was convicted does not constitute an aggravated felony, since the order was “lawful under the law at the time he was deported.” Alvarenga, 271 F.3d at 1173.

The court concluded that Arreola’s assertions that he unknowingly waived his right to appeal the IJ’s decision due to his attorney’s ineffective assistance of counsel raised “a serious due process challenge to the reinstatement process as it is applied to him.” However, the reinstatement statute provides that when a removal order is reinstated, the prior order “is not subject to being reopened or reviewed.” INA sec. 241(a)(5). The court found that this bar to review deprived it of jurisdiction to consider Arreola’s due process challenge to the original removal order. However, the court also found, following the Supreme Court’s reasoning in INS v. St. Cyr, 533 U.S. 289 (2001), that the statutory bar does not apply to habeas corpus review of such a claim.

The court concluded that Arreola’s petition for review should be treated as a habeas petition. However, because the appellate court does not have jurisdiction to consider an original habeas petition, the court lacked jurisdiction to rule on the petition. The court therefore considered whether transfer of the petition to district court was proper under 28 U.S.C. sec. 1631, and concluded that it was.

Arreola-Arreola v. Ashcroft, 383 F.3d 956 (9th Cir. 2004).