                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                   January 18, 2008
                              FOR THE TENTH CIRCUIT              Elisabeth A. Shumaker
                                                                     Clerk of Court


    TSERENDOLGOR TURGEREL,

                Petitioner,

    v.                                                    No. 07-9520
                                                      (Petition for Review)
    MICHAEL B. MUKASEY, * United
    States Attorney General,

                Respondent.


                              ORDER AND JUDGMENT **


Before KELLY, McKAY, and ANDERSON, Circuit Judges.



         Tserendolgor Turgerel, a native and citizen of Mongolia, petitions for

review of a final order of removal. Exercising jurisdiction under 8 U.S.C.

§ 1252(a)(1), we deny the petition.

*
      On November 9, 2007, Michael B. Mukasey became the United States
Attorney General. In accordance with Rule 43(c)(2) of the Federal Rules of
Appellate Procedure, Mr. Mukasey is substituted for Alberto R. Gonzales as the
respondent in this action.
**
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                          I.

      In July 2000 Ms. Turgerel traveled to Mexico with a valid Mongolian

passport and a tourist visa, and attempted to enter the United States at the port of

entry in San Ysidro, California. Allegedly at the urging of her traveling

companion, she did not present her passport but instead asserted that she was a

United States citizen born in Hawaii. Immigration officials conducted an

expedited removal proceeding under 8 U.S.C. § 1225(b)(1) and issued a Notice

and Order of Expedited Removal, determining that because Ms. Turgerel had

made a false claim of United States citizenship and did not have any travel

documents that permitted her to enter the country, she was inadmissible under

8 U.S.C. § 1182(a)(6)(C)(ii) 1 and 1182(a)(7)(A)(i)(I). 2 Admin. R. at 306. She

1
       At the time of Ms. Turgerel’s removal in 2000, this provision read: “Any
alien who falsely represents, or has falsely represented, himself or herself to be a
citizen of the United States for any purpose or benefit under this Act (including
section 1324a of this title) or any other Federal or State law is inadmissible.”
8 U.S.C. § 1182(a)(6)(C)(ii) (Supp. II 1996). This provision is currently codified
at § 1182(a)(6)(C)(ii) (I).
2
     This provision, which has not changed since the time of Ms. Turgerel’s
removal in 2000, states, in pertinent part:

        Except as otherwise specifically provided in this chapter, any
      immigrant at the time of application for admission--

               (I) who is not in possession of a valid unexpired
             immigrant visa, reentry permit, border crossing
             identification card, or other valid entry document
             required by this chapter, and a valid unexpired passport,
             or other suitable travel document, or document of
                                                                         (continued...)

                                         -2-
was removed from the United States to Mongolia on July 27, 2000, and given

notice that she was prohibited from entering, attempting to enter, or being in the

United States for a period of five years. Id. at 305.

         Shortly after returning to Mongolia, Ms. Turgerel met a United States

citizen, and the two were married in Mongolia in 2002. She attempted to enter

the United States again on September 11, 2003, at San Francisco International

Airport, where she presented a valid Mongolian passport. She also had an

approved conditional resident visa, known as a CR-1 visa, which is available to a

spouse who is a beneficiary of a Form I-130, Petition for Alien Relative. But

upon primary and secondary inspection, it appeared Ms. Turgerel was

inadmissible for a combination of reasons—(1) she had been removed in 2000 for

falsely claiming to be a United States citizen; (2) she had failed to disclose on her

CR-1 application that she had been refused admission to the United States; (3) a

memo from the Nebraska Service Center indicated that she was inadmissible

because of the prior removal; and (4) there was no waiver of inadmissibility in

her CR-1 visa package. Id. at 310. Accordingly, she was paroled for deferred




2
    (...continued)
                identity and nationality if such document is required
                under the regulations issued by the Attorney General
                under section 1181(a) of this title[, is inadmissible.]

8 U.S.C. § 1182(a)(7)(A)(i)(I) .

                                            -3-
inspection and permitted to complete her travel plans, settling with her husband

in Utah.

       Ms. Turgerel’s parole was revoked on June 29, 2004, when she was served

with a notice to appear (NTA) before an immigration judge (IJ). The NTA

charged Ms. Turgerel with inadmissibility under the same two statutes she was

charged with in 2000, 8 U.S.C. § 1182(a)(6)(C)(ii) and (a)(7)(A)(i)(I). Several

hearings were held, at which Ms. Turgerel, her husband, her father-in-law, and

the immigration inspector who had entered the expedited removal order in 2000

testified.

       In his oral decision the IJ made a number of findings with respect to the

2000 expedited removal proceedings. He found that Ms. Turgerel had signed a

sworn statement generated by the immigration inspector during an oral interview

that contained an admission that she had falsely presented herself as a United

States citizen when she tried to enter the country at San Ysidro. The IJ also

found that Ms. Turgerel, who had obtained a college degree in English in

Mongolia in 1998, understood English sufficiently in 2000 such that a translator

was not required at the expedited removal proceeding, and that the sworn

statement had been read to her. Accordingly, the IJ found that she understood

both the contents of her sworn statement and the nature of what she had done.

Further, he determined that the false representation was for the purpose of

gaining admission without inspection, a benefit under the Immigration and

                                         -4-
Nationality Act. Finally, the IJ noted that Ms. Turgerel had admitted her false

representation again during her testimony in the immigration court. The IJ,

therefore, found her inadmissible as charged 3 and in his discretion granted her the

relief of voluntary departure. Ms. Turgerel appealed to the Board of Immigration

Appeals (BIA), which affirmed per curiam and without opinion under 8 C.F.R.

§ 1003.1(e)(4). She then filed this petition for review.

                                         II.

      Because the BIA issued a per curiam decision under 8 C.F.R.

§ 1003.1(e)(4), we review the IJ’s decision. See Uanreroro v. Gonzales,

443 F.3d 1197, 1203 (10th Cir. 2006). We examine questions of law de novo and

examine an agency’s factual findings to see if they “are supported by reasonable,

substantial and probative evidence considering the record as a whole.” Elzour v.

Ashcroft, 378 F.3d 1143, 1150 (10th Cir. 2004). “[A]dministrative findings of

fact are conclusive unless any reasonable adjudicator would be compelled to

conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We review issues

concerning our subject matter jurisdiction de novo. Huerta v. Gonzales, 443 F.3d

753, 755 (10th Cir. 2006).




3
      The IJ found Ms. Turgerel removable on both charges, although in the
body of his oral ruling he specifically discussed inadmissibility under only
§ 1182(a)(6)(C)(ii).
                                         -5-
      All of Ms. Turgerel’s arguments on appeal are aimed at establishing that

the expedited removal proceeding conducted pursuant to § 1225(b)(1) violated

her constitutional rights and therefore the expedited removal order is invalid.

Based on these alleged errors, she then would have us conclude that the IJ erred

in relying on evidence related to the expedited removal proceeding. But except

as provided in § 1252(e), whose limited exceptions do not apply here, we lack

jurisdiction to review “any individual determination or to entertain any other

cause or claim arising from or relating to the implementation or operation of an

order of removal pursuant to section 1225(b)(1).” 8 U.S.C. § 1252(a)(2)(A)(i).

The collateral review Ms. Turgerel would have us conduct amounts to a claim

arising from the implementation or operation of the expedited removal order, so

we cannot undertake that review.

      Nor does 8 U.S.C. § 1252(a)(2)(D) override the jurisdictional bar of

§ 1252(a)(2)(A)(i) insofar as Ms. Turgerel raises constitutional claims or

questions of law concerning her expedited removal in 2000. 4 “Section

1252(a)(2)(D) preserves § 1252(a)(2)(A)” and as a result, even as a collateral

matter, “we lack jurisdiction to review any cons titutional or statutory claims



4
      Section 1252(a)(2)(D) provides: “Nothing in subparagraph (B) or (C), or
in any other provision of this chapter (other than this section) which limits or
eliminates judicial review, shall be construed as precluding review of
constitutional claims or questions of law raised upon a petition for review filed
with an appropriate court of appeals in accordance with this section.”
                                         -6-
related to [a § 1225(b)(1)] removal order.” Lorenzo v. Mukasey, 508 F.3d 1278,

No. 06-9505, 2007 WL 4111986, at *2 (10th Cir. Nov. 20, 2007).

      Having determined that we lack jurisdiction to review the claims of error

Ms. Turgerel has raised, we conclude that the IJ properly relied on evidence

related to her expedited removal, which clearly shows that Ms. Turgerel had

made a claim of false citizenship in 2000 for a benefit under federal or state law.

Accordingly, the IJ’s factual findings are “supported by reasonable, substantial

and probative evidence considering the record as a whole.” Elzour, 378 F.3d

at 1150. Further, the IJ properly determined that Ms. Turgerel could not meet her

evidentiary burden to show that she was admissible and not inadmissible under

§ 1182(a)(6)(C)(ii) as charged . See 8 U.S.C. § 1229a(c)(2)(A) (explaining that an

alien applying for admission bears the burden in a removal proceeding of

establishing “that the alien is clearly and beyond doubt entitled to be admitted

and is not inadmissible under section 1182”); see also 8 C.F.R. § 1240.8(b)

(substantially the same). 5




5
       As noted above, the IJ also determined, albeit without discussion, that
Ms. Turgerel was not admissible under 8 U.S.C. § 1182(a)(7)(A)(i)(I) for lack of
proper entry documents . Although Ms. Turgerel did not take issue with this
alternate ground of inadmissibility in either her opening appellate brief or her
brief before the BIA, we decline to affirm solely on this alternate basis because
the IJ did not discuss it with any specificity in his decision.

                                         -7-
                                        III.

       The petition for review is denied. We express no opinion as to

Ms. Turgerel’s argument that she is subject to a five-year bar to admission as a

result of the 2000 expedited removal order rather than a lifetime bar. See Pet’r

Br. at 7.

                                                    Entered for the Court



                                                    Paul J. Kelly, Jr.
                                                    Circuit Judge




                                         -8-
