Ninth Circuit Finds Limited Review for Expedited Removal Orders

In a recent decision, the Ninth Circuit concluded that there is jurisdiction to review the merits of a challenge to an “expedited removal order”.  Smith v. CBP, ___ F.3d ____, 2014 WL 91915 (Jan, 9, 2014).  Although the court ultimately rejected the petitioner’s merits argument, the case opens the door to future challenges by other individuals with different facts.

Under the “expedited removal” process, 8 U.S.C. §1225(b)(1)(A), an immigration officer at the border can issue an expedited order of removal against certain noncitizens applying  to enter.   This can be done immediately, while the person is at the border, and is completely at the discretion of the immigration officer if the officer believes that the person has made a false statement or does not have the proper immigration documents.  The applicant is turned away and is also banished from coming back to the United States for five years.

Even where the CBP officer acts in an arbitrary or abusive manner, the statute seems to preclude any judicial oversight.  According to 8 U.S.C. §1252(e)(2), there is no judicial review of the CBP’s expedited removal order except to determine (1) whether the person is a U.S. citizen; (2) whether the person is a permanent resident or a refugee; and (3) whether the person was ordered removed under the expedited removal statute.  As one court noted:

The entire process… can happen without any check on whether the person understood the proceedings, had an interpreter, or enjoyed any other safeguards.  … [T]his procedure is fraught with risk of arbitrary, mistaken, or discriminatory behavior (suppose a particular CBP officer decides that enough visitors from Africa have already entered the United States).  … [Nevertheless, we] must align ourselves with the courts that have considered the issue and hold that we lack jurisdiction to inquire whether the expedited removal procedure to which the Khans were subjected was properly invoked.

Khan v. Holder, 608 F.3d 325, 329, 330 (7th Cir. 2010).

Under the statute and the governing regulations, CBP is authorized to invoke the expedited removal process only in certain situations.  The statute precludes its use against noncitizens who are not “arriving in the United States”, as well as against citizens of Cuba who arrive by aircraft (“flying Cubans”).  8 U.S.C. §1225(b)(1)(A).  The regulations preclude its application to individuals “for whom documentary requirements are waived” – which includes Canadian citizens who seek to enter the United States as visitors.  See 8 C.F.R. §212.1(a)(1).  Thus, there is an initial threshold question whether CBP actually has the legal authority to issue the expedited removal order against a particular person in the first place.[1]

Prior case law suggested that federal courts have no jurisdiction to consider the threshold question of whether CBP exceeded its statutory and regulatory authority in issuing an expedited removal order.  See, e.g. Li v. Eddy, 259 F.3d 1132, 1134 (9th Cir. 2001), vacated as moot, 324 F.3d 1109 (9th Cir. 2003), cited favorably by Garcia de Rincon v. DHS, 539 F.3d 1133, 1141, n. 4 (9th Cir. 2008) (courts may not “inquire into whether section 1225(b)(1) was properly invoked”); Khan, 608 F.3d at 330 (“we lack jurisdiction to inquire whether the expedited removal procedure to which the [plaintiffs] were subjected was properly invoked”).   In Smith v. CBP, the Ninth Circuit rejected this suggestion and held that the court does in fact have jurisdiction to consider the threshold question:  “we agree with Smith that there is limited jurisdiction to consider his case under §1252(e)(2)(B).”  For example, if a person argued that he was not subject to expedited removal because he was a “flying Cuban”, the court would have jurisdiction to determine that issue.

In Smith v. CBP, Smith argued that as a Canadian citizen he was not subject to expedited removal because he was entitled to the exception established in 8 C.F.R. §235.3(b)(2)(i) (expedited removal does not apply to individuals “for whom documentary requirements are waived”).  The court explained:

Certain Canadian citizens who have established their nonimmigrant status are exempt from the documentary requirements to which other arriving aliens are subject, see 8 C.F.R. § 212.1(a), and are, in turn, not subject to the expedited removal statute. 8 C.F.R. § 235.3(b)(2)(i). But these exceptions apply only to nonimmigrants. See 8 C.F.R. § 212.1 (listing “Documentary Requirements for Nonimmigrants”).

2014 WL 91915, at *4.  Thus, the threshold question that the court entertained was whether Smith had established a bona fide or non-frivolous claim to nonimmigrant status.[2]

On the facts of the case, the court rejected Smith’s claim.  The court noted that when Smith attempted to enter the U.S., he carried photographic equipment, flyers advertising work, and large quantities of cash, and he made false statements concerning the amount of cash that he had, all of which indicated that he might be running a photography business in the United States.  Thus, the court held, Smith did not have a legitimate claim to being a person “for whom documentary requirements are waived.”

However, the court made it clear that it was limiting its decision to the facts of this particular case.

This opinion is limited to the specific circumstances of Smith’s presentation at the border ….  We do not opine on the circumstances of Canadians who fall in the nonimmigrant categories and are exempt from documentary requirements, see 8 C.F.R. §212. 1, or on other circumstances involving Canadians seeking to enter the United States.

2014 WL 91915, n. 5.  Thus, the court leaves for another day the parameters of its review of an expedited removal order against a Canadian citizen who has a bona fide or non-frivolous claim to being a visitor.

[1] If CBP does not have the legal authority to issue an expedited removal order against a noncitizen, that does not necessarily mean that the noncitizen is entitled to be admitted to the United States.  Rather, CBP must decide whether or not the person should be allowed to enter the United States – i.e. decide whether any of the inadmissibility grounds (listed in 8 U.S.C. §1182(a)) applies to the noncitizen.  If the CBP officer decides that the person is not admissible, then the noncitizen can request review of that decision at a court hearing before an immigration judge.  8 U.S.C. §125(b)(2).

[2] The court pointed out that it was not reviewing “whether the alien is actually inadmissible or entitled to any relief from removal.”  The court has no jurisdiction to review that question.  See 8 U.S.C. §1252(e)(5). Rather, it was reviewing only the threshold question whether Smith was eligible for the exemption from documentary requirements.

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