12-123-ag
Shunaula v. Holder



                                           In the
                       United States Court of Appeals
                                 For the Second Circuit

                                      August Term, 2013

               (Submitted: August 29, 2013          Decided: October 16, 2013)

                                      Docket No. 12-123



       WALTER MANUEL SHUNAULA, MERCEDES DEL CISNE CABRERA
           QUEVEDO, WALTER STEEVEN SHUNAULA CABRERA,

                                                   Petitioners,
                                              v.

                     ERIC H. HOLDER, JR., United States Attorney General,

                                                   Respondent.*




Before:
                           RAGGI, LYNCH, and LOHIER, Circuit Judges.




         *
             The Clerk of Court is directed to amend the official caption as shown above.

                                              1
      Petitioners seek review of an order of the Board of Immigration Appeals

(“BIA”) finding them ineligible for adjustment of status due to Walter Manuel

Shunaula’s inadmissibility under section 212(a)(6)(C)(i) of the Immigration and

Nationality Act, 8 U.S.C. § 1182(a)(6)(C)(i), for having sought admission to the

United States by fraud or willful misrepresentation of a material fact. Section

242(a)(2)(A) of the Act, 8 U.S.C. § 1252(a)(2)(A), deprives us of jurisdiction to hear

Shunaula’s due process challenge to the 1997 order of expedited removal underlying

the BIA’s finding of ineligibility for adjustment of status.

      DISMISSED.



             JAMES A. WELCOME, ESQ., Waterbury, Connecticut, for Petitioners.

             SARA J. BERGENE (Stuart F. Delery, Principal Deputy Assistant
             Attorney General, Civil Division; M. Jocelyn Lopez Wright,
             Senior Litigation Counsel, and Christopher Buchanan, Trial
             Attorney, Office of Immigration Litigation, on the brief), Office of
             Immigration Litigation, United States Department of Justice,
             Washington, D.C., for Respondent.



REENA RAGGI, CIRCUIT JUDGE:

      Walter Manuel Shunaula (“Shunaula”), his wife Mercedes del Cisne Cabrera

Quevedo, and their son Walter Steeven Shunaula Cabrera, natives of Ecuador,


                                           2
petition for review of a December 16, 2011 order of the Board of Immigration

Appeals (“BIA”), affirming the March 10, 2010 decision of Immigration Judge

Michael W. Straus (the “IJ”), which denied petitioners’ application for adjustment

of status and ordered them removed to Ecuador. See In re Walter Manuel Shunaula,

Mercedes del Cisne Cabrera Quevedo, Walter Steeven Shunaula Cabrera, Nos. A075

861 761, 097 144 499/498 (B.I.A. Dec. 16, 2011) (“BIA Decision”), aff’g Nos. A075 861

761, 097 144 499/498 (Immig. Ct. Hartford, Conn. Mar. 10, 2010) (“IJ Decision”).

Shunaula submits that the agency erred in finding him ineligible for adjustment of

status based on an earlier 1997 order of removal because that order was entered in

violation of due process. We conclude that section 242(a)(2)(A) of the Immigration

and Nationality Act, 8 U.S.C. § 1252(a)(2)(A), deprives us of jurisdiction to hear these

petitions.1 Accordingly, we order the petitions dismissed.2




      1
      Henceforth in this opinion, we refer to provisions of the Immigration and
Nationality Act only by their United States Code sections.
      2
        Because the petitions of Shunaula’s wife and son are entirely derivative, our
jurisdictional conclusion as to Walter Shunaula applies equally to all three
petitioners.

                                           3
I.    Background

      A.    The 1997 Removal

      On December 13, 1997, Shunaula attempted to enter the United States at

Miami, Florida, on a tourist visa. Officers of the then-existing Immigration and

Naturalization Service (“INS”) searched Shunaula and found a counterfeit green

card and social security card in his wallet. Shunaula admitted knowing that these

documents were counterfeit and disclosed that he had ordered them by mail in

Ecuador. The INS issued an order of expedited removal pursuant to 8 U.S.C.

§ 1225(b)(1),3 and Shunaula was returned to Ecuador the following day. Four

months later, in April 1998, Shunaula entered the United States illegally and has

remained here since.

      On August 13, 2007, the INS’s successor agency, the United States Citizenship

and Immigration Services (“USCIS”), issued Shunaula a Notice to Appear, charging

that he was removable pursuant to 8 U.S.C. § 1182(a)(6)(C)(i) as an alien who had

previously sought admission to the United States through fraud or


      3
       Title 8 U.S.C. § 1225(b)(1)(A)(i) states that an alien found inadmissible by
reason of, inter alia, having sought admission to the United States through fraud or
misrepresentation, see id. § 1182(a)(6)(C)(i), “shall” be ordered removed “without
further hearing or review” unless the alien indicates that he fears persecution or
intends to apply for asylum.

                                         4
misrepresentation, and pursuant to 8 U.S.C. § 1182(a)(6)(A)(i) as an alien present

without admission or parole.

      Appearing before the IJ in 2010, Shunaula acknowledged that he had sought

to enter the United States in possession of false documents in 1997, but asserted that

he had neither been told during his expedited removal proceedings that there would

be future restrictions on his ability to reenter the United States, nor informed of any

right to retain counsel. His counsel stated that the expedited removal order was

invalid and improper inasmuch as Shunaula had possessed a valid visa at the time

of his 1997 entry. The IJ concluded that he was not in a position to entertain a

collateral attack on the 1997 expedited removal order. The IJ ruled that Shunaula

was (1) inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(II), which renders inadmissible

any alien who enters the United States illegally after having been ordered removed

pursuant to, inter alia, an order of expedited removal; and therefore (2) ineligible for

adjustment of status. See IJ Decision at 5–6, Admin. R. 65–66 (citing Delgado v.

Mukasey, 516 F.3d 65 (2d Cir. 2008) (holding ineligible for adjustment of status alien

who was inadmissible due to reentry after prior removal)).

      On appeal to the BIA, Shunaula pressed the argument that his 13-year-old

expedited removal order was improper because he possessed a valid visa at the time


                                           5
of his Miami entry. The BIA concluded that “no jurisdiction lies for us (or the

Immigration Judge) to address this argument now,” and affirmed the IJ’s removal

order. BIA Decision at 2, Admin. R. 4.

      Before this court, Shunaula argues that his 1997 expedited removal violated

due process because (1) he was searched at the airport and held against his will

despite having a valid tourist visa; (2) he was charged with having sought to enter

the United States through fraud or willful misrepresentation when he had made no

misrepresentation and intended none; (3) he was not advised that he was in an

expedited removal proceeding or given an opportunity to contest the government’s

allegations; (4) he was not given the opportunity to consult a lawyer; and (5) the

only document he signed was in English, a language he does not understand.

II.   Discussion

      Before reaching the merits of Shunaula’s petition, we must determine whether

we have jurisdiction to review it. See Arbaugh v. Y&H Corp., 546 U.S. 500, 514

(2006) (reiterating that courts have independent obligation to determine whether

subject-matter jurisdiction exists).




                                         6
      Title 8 U.S.C. § 1252(a)(2)(A), which establishes the jurisdiction of courts to

hear challenges to the expedited removal proceedings set forth in 8 U.S.C.

§ 1225(b)(1), states as follows:

      Notwithstanding any other provision of law . . . no court shall have
      jurisdiction to review--
                 (i) except as provided in subsection (e) of this section, 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) of this title,
                 (ii) except as provided in subsection (e) of this section, a
             decision by the Attorney General to invoke the provisions of
             such section,
                 (iii) the application of such section to individual aliens,
             including the determination [whether an alien has a credible fear
             of persecution], or
                 (iv) except as provided in subsection (e) of this section,
             procedures and policies adopted by the Attorney General to
             implement the provisions of section 1225(b)(1) of this title.

      Title 8 U.S.C. § 1252(e)(2) provides for limited judicial review of expedited

removal orders in habeas corpus proceedings, and § 1252(e)(3) provides for review

of constitutional challenges to the validity of the expedited removal system and

statutory challenges to its implementing regulations and written policies.4 But

      4
       Section 1252(e)(3)(A), states as follows:

              Judicial review of determinations under section 1225(b) of this title
          and its implementation is available in an action instituted in the
          United States District Court for the District of Columbia, but shall be
          limited to determinations of--

                                             7
otherwise § 1252(a)(2)(A) deprives this court of jurisdiction to hear challenges

relating to the Attorney General’s decision to invoke expedited removal, his choice

of whom to remove in this manner, his “procedures and policies,” and the

“implementation or operation” of a removal order. Shunaula’s challenge falls

within this jurisdictional bar because he alleges illegality in the Attorney General’s

particular decision to remove him and in the specific way his removal was carried

out.   He does not challenge the expedited removal system generally, its

implementing regulations, or any written policies.5




                 (i) whether such section, or any regulation issued to
             implement such section, is constitutional; or
                 (ii) whether such a regulation, or a written policy directive,
             written policy guideline, or written procedure issued by or
             under the authority of the Attorney General to implement such
             section, is not consistent with applicable provisions of this
             subchapter or is otherwise in violation of law.
       5
       It does not matter that Shunaula is not attempting to appeal directly from an
expedited order of removal but, rather, seeks to attack such an order collaterally as
part of an appeal from a subsequent order of removal entered in ordinary
proceedings after he returned to the United States. The jurisdictional bar of
§ 1252(a)(2)(A) precludes us from hearing not only appeals from expedited orders
of removal, but also “any other cause or claim . . . relating to” the implementation
of such orders. Shunaula’s appeal from the current order of removal is based
entirely on the claimed invalidity of the earlier order of removal entered in
expedited proceedings. It thus rests on a claim that “relate[s] to” that prior order,
and we therefore lack jurisdiction to consider that claim.

                                          8
      Shunaula contends that, pursuant to United States v. Mendoza-Lopez, 481

U.S. 828 (1987), due process requires that he be afforded an avenue for review of the

expedited removal order. The holding in Mendoza-Lopez is not so broad. The

Supreme Court there held that “where a determination made in an administrative

proceeding is to play a critical role in the subsequent imposition of a criminal

sanction, there must be some meaningful review of the administrative proceeding.”

Id. at 837–38 (emphasis in original). The Court concluded that “[d]epriving an alien

of the right to have the disposition in a deportation hearing reviewed in a judicial

forum requires, at a minimum, that review be made available in any subsequent

proceeding in which the result of the deportation proceeding is used to establish an

element of a criminal offense.” Id. at 839; accord United States v. Sosa, 387 F.3d 131,

136 (2d Cir. 2004).6 Here the government does not seek to use Shunaula’s 1997

expedited removal as “an element of a criminal offense,” United States v. Mendoza-

Lopez, 481 U.S. at 839, but only as the basis for a finding of inadmissibility. Thus,




      6
       The Supreme Court’s decision in Mendoza-Lopez has been “effectively
codified” by statute. United States v. Lopez, 445 F.3d 90, 94 (2d Cir. 2006); see
8 U.S.C. § 1326(d) (providing for collateral attack on underlying deportation order
in prosecution for illegal reentry).

                                          9
Shunaula cannot rely on Mendoza-Lopez to override the jurisdictional bar erected

by § 1252(a)(2)(A) in this case.7

      Insofar as Shunaula argues that his challenge falls within the exception

created by § 1252(e)(3) for “systemic” challenges to the expedited removal process,

we are not persuaded.8 Shunaula introduced no evidence before the IJ, and makes

no argument on appeal, regarding the general nature of the expedited removal

system. He argues only that due process was violated in his particular expedited

removal proceeding, a complaint that does not fall within § 1252(e)(3). Even if

Shunaula’s complaint could be viewed as systemic, however, such a challenge can

be brought only in the United States District Court for the District of Columbia. See

supra n.4 (quoting 8 U.S.C. § 1252(e)(3)(A)). This action did not originate there.

      In concluding that § 1252(a)(2)(A) bars our review of Shunaula’s claim, we join

every other circuit to have considered this matter. See Khan v. Holder, 608 F.3d 325,

329–30 (7th Cir. 2010) (holding that, under § 1252(a)(2)(A), court “lack[s] jurisdiction

      7
        We need not—and do not—decide here whether a defendant charged with
illegal reentry following expedited removal would ever be able to challenge
collaterally his removal proceedings pursuant to Mendoza-Lopez and
8 U.S.C. § 1326(d), despite the § 1252(a)(2)(A) jurisdictional bar.
      8
      In an apparent clerical error, Shunaula refers in his brief to “8 U.S.C. Section
1252(C)(3),” Pet’r’s Br. 17, but the United States Code contains no such provision,
and the context makes clear that it is § 1252(e)(3) to which Shunaula refers.

                                          10
to inquire whether the expedited removal procedure to which the Khans were

subjected was properly invoked”); Garcia de Rincon v. DHS, 539 F.3d 1133, 1138–39

(9th Cir. 2008) (holding that § 1252(a)(2)(A) presents jurisdictional bar to collateral

attack on expedited removal order); Lorenzo v. Mukasey, 508 F.3d 1278, 1281 (10th

Cir. 2007) (same).

III.   Conclusion

       To summarize, we conclude that 8 U.S.C. § 1252(a)(2)(A) deprives this court

of jurisdiction to hear Shunaula’s collateral attack on his order of expedited removal

and, therefore, to hear the derivative claims of his wife and son.

       Accordingly, the petitions for review are hereby DISMISSED for lack of

jurisdiction.




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