                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-20-2009

Ponta-Garcia v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 07-2551




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                                              PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                          No. 07-2551


       RENATO MANUEL DA COSTA PONTA-GARCIA,
                               Petitioner
                        v.

       ATTORNEY GENERAL OF THE UNITED STATES,
                                Respondent


         PETITION FOR REVIEW OF A DECISION OF
       UNITED STATES IMMIGRATION AND CUSTOMS
                    ENFORCEMENT


                    Argued: January 15, 2009


    Before: SLOVITER, BARRY, and SILER, JR.,* Circuit Judges

                (Opinion Filed: February 20, 2009)


Michael P. DiRaimondo, Esq. (Argued)
DiRaimondo & Masi
401 Broadhollow Road
Suite 302
Melville, NY 11747-0000

Counsel for Petitioner


*
  The Honorable Eugene E. Siler, Jr., Senior Circuit Judge,
United States Court of Appeals for the Sixth Circuit, sitting by
designation.
Andrew Oliveira, Esq. (Argued)
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044-0000

Counsel for Respondent




                   OPINION OF THE COURT


BARRY, Circuit Judge

        Petitioner contests the reinstatement of a twenty-year old
order of removal, challenging both its legal and factual bases.
Given the nature of the reinstatement procedure, the record
before us is, not surprisingly, sparse and, in the ordinary case,
might nonetheless be sufficient for us to perform the full judicial
review we are required to perform. But petitioner, with some
support in even that sparse record, has raised questions which,
with further development of the facts, could lead to a different
result. He also challenges the regulation that applies to a
reinstatement determination, a challenge we reject. We will,
however, vacate the reinstatement determination itself and
remand so that the relevant facts can be developed and the open
questions answered.

                     I. Factual Background

       Petitioner Renato Manuel Da Costa Ponta-Garcia
(“Ponta-Garcia”) is a native and citizen of Portugal. In 1978, at
age nine, he entered the United States with his family as a lawful
permanent resident. Shortly thereafter, he and his family left the
country for Bermuda, apparently relinquishing their lawful
permanent resident status. In 1983, now age fourteen, Ponta-
Garcia returned, with his family, to the United States as a visitor,
and overstayed his visa. Removal proceedings were initiated

                                 2
against him and his family in 1985.

        In 1987, an immigration judge found that the Ponta-
Garcia family was subject to removal, and granted them the right
to depart voluntarily by July 31, 1987. They did not do so, and
Ponta-Garcia asserts that the order of removal was judicially
invalidated at some later point. Some support for that assertion
is the fact that on October 30, 1990, Ponta-Garcia applied for a
“New Alien Registration Receipt Card,” which application was
granted in early 1991. It was noted on the application,
presumably by the examining immigration officer, that Ponta-
Garcia’s original I-151 (green card) was “seen and destroyed on
1-4-91.” The assertion is also supported by the fact that in April
1992, Ponta-Garcia went to Canada to attend a wedding, and
reentered the United States four days later using his green card.
This reentry occurred without incident. Finally, we note, it does
not appear that any member of his family has been removed
pursuant to the 1987 order of removal over these many years.

        On March 2, 1995, Ponta-Garcia and his brother, Helder,
filed a “Complaint for Declaratory and Injunctive Relief and
Petition for Writ of Habeas Corpus (with Stay of Deportation)”
in the U.S. District Court for the District of Connecticut, naming
the Department of Justice and John P. Weiss, the officer in
charge of the Immigration and Naturalization Service in
Hartford, Connecticut, as defendants. A stay of deportation was
granted that same day by the Hon. Dominic J. Squatrito, a
motion for the review of bond was denied on March 13, 1995,
and, for reasons unknown, the case was dismissed on March 28,
1995.

       It may well have been the filing of that complaint that
prompted the investigation of Ponta-Garcia’s status and the
affidavit of his girlfriend attesting to his trip to and from Canada
in April 1992. Based on that affidavit, on March 16, 1995, a
warrant for Ponta-Garcia’s deportation was issued with the
notation that he was “to be put in proceedings anew.” JA17.
(Query whether “proceedings anew” would have been necessary
had the removal order not been invalidated.)


                                 3
        In any event, for twelve years after the warrant for
deportation issued and for fifteen years after Ponta-Garcia
reentered from Canada, nothing relevant to his immigration
status – at least, nothing of which we know – appears to have
happened. Then, in April 2007, Immigration and Customs
Enforcement (“ICE”) issued Ponta-Garcia a notice that it
intended to reinstate the by-then twenty-year old order of
removal, perhaps having been roused after all of those years
when notified of one or more of Ponta-Garcia’s run-ins with the
law. The stated grounds for reinstatement were that Ponta-
Garcia voluntarily departed the United States pursuant to an
order of removal when he left the country for the visit to Canada,
and that he illegally reentered the United States four days later.
Acting through an immigration officer, ICE determined that
Ponta-Garcia’s order of removal was subject to reinstatement,
and thus that he should be removed. This petition followed.

                         II. Discussion

        In 1996, Congress changed the manner in which
reinstatements of orders of removal are handled. In relevant
part, the new statute reads:

       If the Attorney General finds that an alien has
       reentered the United States illegally after having
       been removed or having departed voluntarily,
       under an order of removal, the prior order of
       removal is reinstated from its original date and is
       not subject to being reopened or reviewed, the
       alien is not eligible and may not apply for any
       relief under this Act, and the alien shall be
       removed under the prior order at any time after the
       reentry.

8 U.S.C. § 1231(a)(5).

       Under the relevant regulation interpreting the statute, an
alien subject to reinstatement “has no right to a hearing before an
immigration judge.” 8 C.F.R. § 241.8(a). To effectuate
reinstatement, an immigration officer must find that (1) the alien

                                4
was subject to a prior order of removal; (2) the alien is the same
person as the one named in the prior order (i.e., confirmation of
identity) and; (3) the alien unlawfully reentered the country. See
id. § 241.8(a)(1)-(3). In determining whether the alien
unlawfully reentered the country, the immigration officer “shall
consider all relevant evidence, including statements made by the
alien and any evidence in the alien’s possession. The
immigration officer shall attempt to verify an alien’s claim, if
any, that he or she was lawfully admitted . . . .” Id. §
241.8(a)(3). The regulation also provides the alien with notice,
and allows for him or her to make a “written or oral statement
contesting the determination.” Id. § 241.8(b).

A.     The Challenge to the Reinstatement Procedures

       Ponta-Garcia challenges the reinstatement procedures on
two grounds: first, he asserts that the regulation promulgated by
the Attorney General constitutes an unreasonable and thus
impermissible construction of 8 U.S.C. § 1231(a)(5); and
second, he asserts that the regulation violates due process.

       1.     The Regulation Is A Reasonable Construction
              of the Statute

        Every court of appeals to have considered the issue has
concluded that the regulation constitutes a reasonable
construction of 8 U.S.C. § 1231(a)(5).1 We agree. Under
Chevron U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 842 (1984), we are required to determine, as
an initial matter, whether Congress “has directly spoken to the
precise question at issue.” Congress has not done so here, for


       1
         See Morales-Izquierdo v. Gonzales, 486 F.3d 484, 493-94
(9th Cir. 2007) (en banc); Lorenzo v. Mukasey, 508 F.3d 1278,
1283-84 (10th Cir. 2007); Ochoa-Carrillo v. Gonzales, 437 F.3d
842, 846 (8th Cir. 2006); De Sandoval v. Attorney General, 440
F.3d 1276, 1280-83 (11th Cir. 2006); Tilley v. Chertoff, 2005 WL
1950796, at *3 (6th Cir. Aug. 15, 2005); Lattab v. Ashcroft, 384
F.3d 8, 17-20 (1st Cir. 2004).

                                5
the statute does not specify the procedures to be used to reinstate
a prior order of removal. Accordingly, we proceed to the second
prong of Chevron, and determine whether the regulation
promulgated by the Attorney General is “based on a permissible
construction of the statute.” Id. at 843.

       Ponta-Garcia’s primary complaint is that the regulation
does not provide for a hearing before an immigration judge. See
8 C.F.R. § 241.8(a) (providing that an alien subject to a
reinstatement determination “has no right to a hearing before an
immigration judge”). He argues that the statutory scheme must
be interpreted to provide for a hearing by an immigration judge
because of the exclusivity clause of 8 U.S.C. § 1229a. Indeed, §
1229a does state that “[a]n immigration judge shall conduct all
proceedings for deciding the inadmissibility or deportability of
an alien.” Moreover, § 1229a(3) provides that “[u]nless
otherwise specified under this chapter, a proceeding under this
section shall be the sole and exclusive procedure for determining
whether an alien may be admitted to the United States, or, if the
alien has been so admitted, removed from the United States.”

       On their face, these statutory provisions would appear to
govern reinstatement determinations, as such determinations
involve the “deportability of an alien” and can result in his or her
“remov[al] from the United States.” Id. However, in line with
the other courts that have considered this issue, see supra note 1,
we conclude that 8 U.S.C. § 1231(a)(5), the sole statute dealing
with reinstatement determinations, is an “otherwise specified”
exception to the exclusivity clause.

        Section 1231(a)(5) makes quite clear Congress’s intent to
expedite and streamline reinstatement determinations. See 8
U.S.C. § 1231(a)(5) (providing that an order of removal is “not
subject to being reopened or reviewed” at a reinstatement
determination, disallowing “relief under this chapter,” and
declaring that “the alien shall be removed under the prior order
at any time after the reentry”). The Attorney General concluded
that the goal of streamlining would be advanced by providing
previously-removed aliens with review only by an immigration
officer.

                                 6
       This conclusion is reasonable in light of the
circumstances presented by reinstatement determinations: aliens
subject to reinstatement have already been ordered removed, and
thus have already been provided with the requisite procedures
and review. The risk of error is much reduced under such
circumstances, and the regulation properly reflects this reality.
Section 1231(a)(5) has reasonably been interpreted as an
exception to § 1229a.2

       2.     The Regulation Does Not Violate Due Process

      We are similarly unpersuaded by Ponta-Garcia’s
argument that the regulation violates due process.3 As with the

       2
         We note that the Attorney General was well aware of the
argument that a reinstatement determination should be made by an
immigration judge. The Federal Register’s commentary discussing
the regulation states that “[s]everal commenters suggested that
aliens caught illegally reentering the United States after removal
should be provided a hearing before an immigration judge. They
expressed concern that issues such as identity and the propriety of
the earlier removal order would not be addressed.” Reinstatement
of Removal Orders Against Aliens Illegally Reentering, 62 Fed.
Reg. 10312, 10326 (Mar. 6, 1997). The Attorney General rejected
these concerns, and concluded that the regulation “adequately
addresses the concerns expressed by the commenters.” Id. This
conclusion was a legitimate and reasonable construction of the
statute entitled to Chevron deference. Indeed, when taking into
consideration congressional intent to streamline the procedures,
this may well have been the more reasonable construction of the
statute.
       3
         The government argues that Ponta-Garcia has not shown
that he was prejudiced by the procedures, and thus cannot
challenge them on due process grounds. Other courts have taken
this approach when faced with petitioners who did not dispute “the
facts necessary to warrant reinstatement of the original deportation
order.” Lattab, 384 F.3d at 20-21(declining to reach the due
process issue because petitioner could not show prejudice because
he did not dispute “the facts necessary to warrant reinstatement of

                                 7
Chevron issue discussed above, the gravamen of Ponta-Garcia’s
due process claim is that the regulation does not provide for a
hearing before an immigration judge.

        The delegation of authority to immigration officers, as
opposed to immigration judges, is not of constitutional import.
Indeed, there is nothing constitutionally special about
immigration judges; they are wholly a creature of statute. See,
e.g., Lopez-Telles v. INS, 564 F.2d 1302, 1303 (9th Cir. 1977)
(“Immigration judges . . . are creatures of statute, receiving some
of their powers and duties directly from Congress, and some of
them by subdelegation from the Attorney General.”) (internal
citations omitted). While we may not “grant immigration
inspectors the same fact-finding deference as we would
immigration judges, there is a presumption that immigration
inspectors are not biased.” Gomez-Chavez v. Perryman, 308
F.3d 796, 802 (7th Cir. 2002).

       Moreover, the regulation does, in fact, provide more than
just minimal procedural protections. Under the regulation, the
immigration officer is required to determine whether (1) the
alien was subject to a prior order of removal; (2) the alien is the
same person as the one named in the prior order and; (3) the
alien unlawfully reentered the country. See 8 C.F.R. §
241.8(a)(1)-(3). Additionally, the regulation requires the
immigration officer to “consider all relevant evidence” in
making the above determinations. Id. § 241.8(a)(3). The alien is
also specifically given an opportunity to be heard, as the
immigration officer must consider “statements made by the alien
and any evidence in the alien’s possession,” id., and must also
allow the alien to make a “written or oral statement contesting
the determination,” id. § 241.8(b). Remembering that a



the original deportation order”); De Sandoval, 440 F.3d at 1285
(same).
       The situation here is much different. Ponta-Garcia does
dispute the factual underpinnings of the reinstatement order and
has also linked the allegedly erroneous determination to the
inadequacy of the procedures.

                                8
reinstatement determination can only be applied to a person who
was already subject to a prior order of removal with its attendant
pre- and post-order protections, there is no issue of constitutional
concern.

        Finally, full judicial review is available to an alien
adjudged removable following the reinstatement procedures at
issue. (See Respondent’s Br. 33 (“Aliens subject to
reinstatement have the opportunity for full judicial review of the
determination in the court of appeals.”).) See also United States
v. Charleswell, 456 F.3d 347, 353 (3d Cir. 2006); Ponta-
Garc[i]a v. Ashcroft, 386 F.3d 341, 342 (1st Cir. 2004) (“An
order reinstating an earlier order of deportation is subject to
review. . . .”); 8 U.S.C. § 1252 (providing for judicial review of
final orders of removal); Duran-Hernandez v. Ashcroft, 348 F.3d
1158, 1162 n.3 (10th Cir. 2003) (finding that 8 U.S.C. § 1252
covers review of reinstatement orders).

       One caveat, however. The original order of removal is
“not subject to being reopened or reviewed” at the time of the
reinstatement determination or on judicial review. 8 U.S.C. §
1231(a)(5). While this language prohibits relitigation of the
merits of the original order of removal, it does not prohibit an
examination of whether the original order was invalidated, or
preclude judicial review of whether ICE met its obligations in
making the reinstatement determination. As we will now
address, it is for precisely these reasons that we are returning this
case for further factual development. See, e.g., Arevalo v.
Ashcroft, 344 F.3d 1, 9 (1st Cir. 2003) (“While we cannot revisit
the validity of the original deportation order, we do have the
authority to determine the appropriateness of its resurrection.”).
The provision of this judicial review, as well as the adequate
procedures set forth in the regulations, persuade us that, separate
and apart from whether Ponta-Garcia will ultimately prevail on
the merits of his claim, the reinstatement regulation is
constitutional.4


       4
         The only courts to have reached this issue are in
agreement. See Morales-Izquierdo, 486 F.3d at 495-98 (“Given the

                                 9
B.     The Claim on the Merits

        Ponta-Garcia argues that even if the reinstatement
procedures pass muster, they should not have been applied to
him. He claims not only that the 1987 order of removal was
invalidated by a court, but claims as well that he did not reenter
the country illegally when he returned from his four-day visit to
Canada in 1992 with what he says was a valid green card. If he
is correct as to either or both of these claims – and there is some
support for each – serious concerns are raised.



narrow and mechanical determinations immigration officers must
make and the procedural safeguards provided by [the regulations],
the risk of erroneous deprivation is extremely low. . . . While the
regulation does not offend due process, we leave open the
possibility that individual petitioners may raise procedural defects
in their particular cases.”); Lorenzo, 508 F.3d at 1284; Tilley, 2005
WL 1950796, at *4 (“We also hold that the reinstatement
procedure offers adequate due process. . . . The reinstatement order
asks only three factual questions. A judge is not needed to decide
whether the alien was subject to a prior order of removal, nor
whether the alien deported is the same alien as the one subject to
reinstatement, not whether the alien re-entered the country illegally.
And if the alien asserts that any of these decisions was incorrect,
she may appeal the immigration officer’s findings directly to the
circuit court. To plead for additional process in this procedure is
to forget how limited is its scope.”).
      Other courts have discussed this issue in dicta, and indicated
mixed feelings. Compare Alvarez-Portillo v. Ashcroft, 280 F.3d
858, 867 (8th Cir. 2002) (declining to reach the issue, but stating
that the “streamlined notice and opportunity to be heard afforded
illegal reentrants under [the regulations] seem quite appropriate
when the only issues to be determined are those establishing the
agency’s right to proceed under [the reinstatement statute”) with
Lattab, 384 F.3d at 21 n.6 (declining to reach the issue, but
commenting that “[t]he summary reinstatement process offers
virtually no procedural protections,” and suggesting that appellate
review “may not be adequate when the alien has not been given a
meaningful opportunity to develop an administrative record”).

                                 10
        The Court of Appeals for the First Circuit addressed the
nearly-identical situation of Ponta-Garcia’s brother, Helder, and
recognized these same concerns. Helder, subject to the same
order of removal, and, much later, subject to reinstatement of
that order, challenged the reinstatement in the Court of Appeals.
See Ponta-Garc[i]a, 386 F.3d 341. The Court found that it
lacked jurisdiction because the petition for review was untimely,
see id. at 341-42, but noted that the issues were potentially
meritorious and “encourage[d] the respondent to reexamine the
case with care.” Id. at 343.

       If the representations made by [Helder’s] counsel
       are accurate, he would appear to have a strong case
       on the merits. [Helder] contends that he did not
       voluntarily depart under the prior deportation order
       but, rather, left the country temporarily to attend a
       wedding. He also contends that he did not reenter
       the country illegally, but, rather, was inspected and
       allowed entry. If either of these assertions is
       correct, the reinstatement provision would appear
       to be inapplicable by its express terms. Moreover,
       the petitioner contends that the 1987 deportation
       order was invalidated by the federal district court
       in Connecticut at some point after his reentry. If
       that is so, the administrative reinstatement of that
       order would appear problematic. See Chacon-
       Corral v. Weber, 259 F.Supp.2d 1151, 1164
       (D.Col. 2003) (“Because deportation for
       unauthorized reentry under INA § 241(a)(5) is
       under the original order of deportation, a
       determination that the original order was invalid
       renders § 241(a)(5) inapplicable in a given case.”).
       Particularly in light of the due process concerns
       that can arise in this context. . . ., we encourage
       the respondent to reexamine the case with care.

Id. (citations omitted).

       Just as the First Circuit was troubled by the brother’s
claims, we are troubled by Ponta-Garcia’s claims and thus return

                                11
the matter from whence it came for a careful consideration of
those claims.5 In so doing, we are cognizant of the fact that
Congress passed 8 U.S.C. § 1231(a)(5) to streamline and
expedite reinstatement determinations. In most cases, a
reinstatement determination will be simple, and the underlying
grounds for reinstatement (the existence of an order of removal,
identity confirmation, and the fact of illegal reentry) will not be
contested. However, in circumstances such as these, where the
alien claims that he contested the bases for reinstatement and
offered some support for why he may be correct, the regulation
requires that the immigration officer “consider [the alien’s]
evidence” and “attempt to verify an alien’s claim.” 8 C.F.R. §
241.8(a)(3). As the government tells us in its brief on appeal,
“ICE has the necessary expertise to determine the validity of
Petitioner’s assertions.” (Respondent’s Br. 25.) Assuming that
Ponta-Garcia contested before the immigration officer the notice
of intent to reinstate the prior order of removal, more is required
than it appears was done here.

                         III. Conclusion

       For the foregoing reasons, we will vacate the order of
reinstatement and remand to ICE for further proceedings in
accordance with this Opinion.




       5
         We suggest that on remand some consideration be given
to whether leaving the country for a four-day personal trip
constitutes “depart[ing] voluntarily, under an order of removal,” as
required by the statute. 8 U.S.C. § 1231(a)(5) (emphasis added).


                                12
