                              NOT FOR PUBLICATION                         FILED
                    UNITED STATES COURT OF APPEALS                        AUG 11 2017
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

MIGUEL PACHECO-MIRANDA,                          No.   14-70296

                Petitioner,                      Agency No. A077-395-812

 v.
                                                 MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,

                Respondent.

                    On Petition for Review of a Decision of the
                        Department of Homeland Security

                        Argued and Submitted July 10, 2017
                                Portland, Oregon

Before: WATFORD and OWENS, Circuit Judges, and CHHABRIA,** District
Judge.

      Challenges to the reinstatement of a prior removal order come in various

forms. They may directly attack the reinstatement decision, in which case

appellate review is limited to the factual predicates for reinstatement as defined in



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Vince Chhabria, United States District Judge for the
Northern District of California, sitting by designation.
regulation. Garcia de Rincon v. Dep’t of Homeland Sec., 539 F.3d 1133, 1137 (9th

Cir. 2008); see also 8 C.F.R. § 241.8(a). They may collaterally attack the

underlying removal order, in which case appellate review is further constrained.

See Villa-Anguiano v. Holder, 727 F.3d 873, 877-78 (9th Cir. 2013); Garcia de

Rincon, 539 F.3d at 1139. Or they may attack the process by which the

reinstatement decision was reached. See Morales de Soto v. Lynch, 824 F.3d 822,

825 (9th Cir. 2016). In this third category of cases, the petitioner is not seeking a

different outcome on the merits of reinstatement. He is instead seeking a revised

process for evaluating the merits, in the hope that the Department of Homeland

Security (“DHS”) might, on remand, exercise its discretion differently – either by

referring the petitioner to a formal removal hearing before an immigration judge,

or by declining to institute proceedings entirely. See, e.g., Villa-Anguiano, 727

F.3d at 878-79, 882.

      Miguel Pacheco-Miranda, a Mexican national, has filed a petition for review

that falls into this third category. He does not challenge the factual predicates

supporting his January 29, 2014 reinstatement decision. Nor does he challenge his

underlying 1998 removal order. Instead, he argues that due process required DHS

to take into account the possibility that his presence in federal custody was the

product of a traffic stop by a local police officer that was prolonged to investigate

his immigration status – conduct so clearly contrary to Ninth Circuit precedent that


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it constituted an “egregious” Fourth Amendment violation. See, e.g., Melendres v.

Arpaio, 695 F.3d 990, 1001 (9th Cir. 2012). As the theory goes, because an

egregious Fourth Amendment violation would affect ordinary removal proceedings

before an immigration judge, it might also alter DHS’s thinking on whether to

pursue reinstatement of a prior removal order, even if the three factual predicates

for reinstatement – identity, prior removal, and unlawful reentry – are undisputed.

For this proposition, Pacheco-Miranda invokes our decision in Villa-Anguiano,

where we remanded a reinstatement decision on due process grounds. 727 F.3d at

881 (“Due process . . . entitles an unlawfully present alien to consideration of

issues relevant to the exercise of an immigration officer’s discretion.”).

       Pacheco-Miranda appears to be right on at least one point. Based on the

admittedly limited record before us, it appears Pacheco-Miranda came into the

custody of federal immigration officials through the unconstitutional conduct of an

officer of the Sidney Police Department. The apparent Fourth Amendment

violation may also have been “egregious” as this Court has defined that term. See

Orhorhaghe v. I.N.S., 38 F.3d 488, 493 (9th Cir. 1994). And DHS officials may

even have aided in the constitutional violation. However, even assuming an

egregious Fourth Amendment violation, Villa-Anguiano does not require a remand

in this case.

       In Villa-Anguiano, DHS failed to account for a district court decision calling


                                          3
into question the validity of the petitioner’s underlying removal order. Villa-

Anguiano, 727 F.3d at 876-77. That error prevented DHS from evaluating the

factual predicates for removal with an accurate understanding of the relevant

evidence, and deprived the petitioner of a meaningful opportunity to make a

statement on his behalf. Id. at 880-81. We therefore concluded that remand was

necessary to give full effect to the regulation governing reinstatement. Id. at 881

(“For the requirements of [the reinstatement regulation] to function as the requisite

‘procedural safeguards’ of the alien’s right to due process in the context of

streamlined proceedings, they must apply at the relevant time.” (citation omitted));

see also Ponta-Garcia v. Attorney Gen. of U.S., 557 F.3d 158, 165 (3d Cir. 2009).

      This case does not present a similar problem. Pacheco-Miranda has not

connected the apparent Fourth Amendment violation to the decision to reinstate

except in the most atmospheric sense. He does not claim that the Fourth

Amendment violation calls into question any of the factual predicates for

reinstatement.1 He does not claim that the Fourth Amendment violation somehow

denied him an opportunity to make a statement on his behalf. And although his

opening brief draws an extended analogy to the use of the exclusionary rule in

ordinary removal proceedings, he does not seek to exclude evidence of his


1
  The government conceded at oral argument that a Fourth Amendment violation
calling into question a factual predicate for reinstatement would require a different
result.

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statements to DHS. See also United States v. Ortiz-Hernandez, 427 F.3d 567, 577

(9th Cir. 2005). Nothing about Pacheco-Miranda’s Fourth Amendment violation

bears on the reinstatement process that this Court has already declared

constitutionally sufficient on its face. See Morales-Izquierdo v. Gonzales, 486

F.3d 484, 496 (9th Cir. 2007) (en banc). Due process therefore does not require a

remand.2 Pacheco-Miranda may well be able to invoke the alleged Fourth

Amendment violation in a section 1983 action against the officers responsible for

violating his constitutional rights. But he may not invoke it to obtain

reconsideration of the reinstatement decision.

      PETITION FOR REVIEW DENIED.




2
  That DHS has issued guidance that may call for the exercise of prosecutorial
discretion in cases such as this does not affect the analysis. DHS’s guidance does
not create substantive rights. James v. U.S. Parole Comm’n, 159 F.3d 1200, 1206
(9th Cir. 1998). And while it is unclear what value the government sees in
reinstating removal against a man with three U.S.-citizen children, no criminal
record (notwithstanding his illegal reentry), and a possible path to adjustment of
status, this Court lacks jurisdiction to review DHS’s decision to initiate
reinstatement proceedings in lieu of some lesser alternative. 8 U.S.C. § 1252(g).

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