                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


ALEJANDRO ISRAEL VILLA-                  No. 08-74585
ANGUIANO,
                      Petitioner,         Agency No.
                                         A090-068-616
                v.

ERIC H. HOLDER, JR., Attorney             OPINION
General,
                        Respondent.


       On Petition for Review of an Order of the
           Board of Immigration Appeals

                Argued and Submitted
         April 9, 2013—Pasadena, California

                Filed August 14, 2013

    Before: Marsha S. Berzon, Richard C. Tallman,
       and Milan D. Smith, Jr., Circuit Judges.

              Opinion by Judge Berzon;
              Dissent by Judge Tallman
2                 VILLA-ANGUIANO V. HOLDER

                           SUMMARY*


                           Immigration

    The panel granted Alejandro Israel Villa-Anguiano’s
petition for review from the government's reinstatement of a
prior removal order, vacated the reinstated order, and
remanded the case to Immigration and Customs Enforcement.

    The panel held that, because the district court hearing the
criminal prosecution against Villa for illegal reentry
invalidated on constitutional grounds the prior removal order,
the government could not simply rely on a pre-prosecution
determination to reinstate the prior order. The panel held that
the agency must provide Villa with an opportunity to address
the expedited reinstatement determination, and that the
agency must independently reassess whether to rely on the
prior order or rather to instigate full removal proceedings.

    Dissenting, Judge Tallman would deny relief. He would
find that the laws enacted by Congress, and the Department
of Homeland Security’s permissible construction of those
laws, allowed the immigration officer to reinstate Villa’s
prior order of removal, regardless of the district court’s
conclusion. Judge Tallman also wrote that the majority
opinion announced a novel holding that an alien who
unlawfully re-enters the country has a due process right to
influence the exercise of the Department of Homeland
Security’s prosecutorial discretion.


  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
               VILLA-ANGUIANO V. HOLDER                     3

                        COUNSEL

Karla L. Kraus (argued), Kraus Law Corporation, San Diego,
California, for Petitioner.

Carol Federighi (argued), Senior Litigation Counsel; Tony
West, Assistant Attorney General; William C. Peachey,
Assistant Director, United States Department of Justice, Civil
Division, Washington, D.C., for Respondent.


                         OPINION

BERZON, Circuit Judge:

    Alejandro Israel Villa-Anguiano (“Villa”) petitions for
review of the government’s reinstatement of a removal order
issued in 1997. Villa contends that the Immigration and
Customs Enforcement (“ICE”) agency of the Department of
Homeland Security (“DHS”) may not deport him on the basis
of his prior removal order, because a federal district court
found that due process violations in his 1997 immigration
hearing rendered the removal order invalid as a predicate for
criminal prosecution under 8 U.S.C. § 1326.

    We have jurisdiction under 8 U.S.C. § 1252(a)(1) to
review a reinstatement order, see Castro-Cortez v. INS,
239 F.3d 1037, 1044 (9th Cir. 2001), abrogated on other
grounds by Fernandez-Vargas v. Gonzales, 548 U.S. 30
(2006); accord Padilla v. Ashcroft, 334 F.3d 921, 924 (9th
Cir. 2003), and retain jurisdiction under § 1252(a)(2)(D) to
consider “constitutional claims or questions of law raised
upon a petition for review,” see Garcia de Rincon v. DHS,
539 F.3d 1133, 1137–38 (9th Cir. 2008). For the reasons
4               VILLA-ANGUIANO V. HOLDER

stated below, we grant Villa’s petition, vacate the
reinstatement order, and remand to ICE for further
proceedings.

                               I.

    This case comes before us in an unusual posture. Villa,
who entered the United States from Mexico at the age of one,
became a lawful permanent resident in 1989. Following a
conviction for voluntary manslaughter in 1993 and service of
his stipulated sentence, Villa was ordered deported in 1997 at
a group hearing before an immigration judge in El Centro,
California. He was physically removed in 1999 but
subsequently reentered the United States without permission
in 2001. On May 3, 2008, Villa was arrested by local law
enforcement following a traffic stop. The next day, the
government determined that Villa was “subject to removal by
reinstatement of the prior [1997] order,” pursuant to 8 U.S.C.
§ 1231(a)(5) and 8 C.F.R. § 241.8.

    Villa concedes that he was provided notice and an
opportunity to contest reinstatement on May 4, 2008, as
required by 8 C.F.R. § 241.8(b). His signature appears on the
Notice of Intent/Decision to Reinstate Prior Order form,
beside the statement, “I do not wish to make a statement
contesting this determination.” The government did not,
however, proceed at that point with the actual removal.
Instead, the government decided to prosecute Villa for illegal
reentry.

    Before the district court on the illegal reentry charge, and
now with the assistance of counsel, Villa collaterally attacked
his 1997 removal order. See 8 U.S.C. § 1326(d); United
States v. Mendoza-Lopez, 481 U.S. 828, 837–38 (1987)
                   VILLA-ANGUIANO V. HOLDER                                5

(permitting an alien to seek review of the deportation order
used as a predicate element of an illegal reentry offense if he
was denied judicial review of prior removal proceedings). He
contended that due process violations in the underlying
removal proceedings precluded him from obtaining judicial
review of his 1997 deportation order. The government
conceded that Villa was eligible in 1997 for relief under
Immigration and Nationality Act (“INA”) § 212(c) and that
the Immigration Judge did not inform him of that fact. But,
the government argued § 212(c) relief was not plausible at the
time of the immigration hearing, which predated INS v. St.
Cyr, 533 U.S. 289 (2001), and thus Villa could not show
prejudice.

    The district court rejected the government’s arguments,
finding: (1) that Villa had demonstrated a deprivation of his
right to counsel in the group immigration hearing; and (2)
that Villa was prejudiced by the resulting due process
violation, because he was eligible for relief under § 212(c) at
the time of his removal proceedings, and was not so
informed. Consequently, the district court held, “the outcome
of [his] immigration proceeding was potentially affected by
the denial of his right to counsel.”1 The court held the 1997



  1
    “[T]o mount a successful collateral attack on a prior removal order
under § 1326(d), an alien who was convicted of an aggravated felony and
was not properly advised of his right to counsel or did not waive this right
must show that he was actually prejudiced by this due process violation,”
United States v. Reyes-Bonilla, 671 F.3d 1036, 1049 & n.11 (9th Cir.
2012), cert. denied, 133 S. Ct. 322 (2012). At the same time, however, a
petitioner need not demonstrate prejudice as a result of a deprivation of the
right to counsel to prevail on a petition for review of a removal order. See
Montes-Lopez v. Holder, 694 F.3d 1085, 1086, 1090, 1093–94 (9th Cir.
2012).
6                 VILLA-ANGUIANO V. HOLDER

removal order invalid as the predicate for criminal
prosecution under § 1326 and so, on October 9, 2008,
dismissed Villa’s indictment.

    On October 10, 2008, the day after Villa’s criminal
proceedings were dismissed, immigration officials “reinstated
on today’s date” the “prior order of removal by an
Immigration Judge,” and Villa was physically removed. Villa
was neither notified at that point that the order was going to
be issued and executed nor given an opportunity to object,
either in writing or orally, to the reinstatement. He was
denied such opportunity despite the very relevant
development that occurred in the five months since
reinstatement proceedings were initiated—namely, the
district court’s determination that the 1997 removal order was
constitutionally infirm.

    ICE was aware of the criminal prosecution from the
outset. The Record of Deportable/Inadmissible Alien, Form
I-213, dated May 4, 2008, indicated that Villa was “being
held in DHS custody pending criminal prosecution for
violation of 8 U.S.C. § 1326.” But the addendum to the form,



     Because Villa does not petition for review of the 1997 removal order
in this court, we need not determine at this stage whether he was plausibly
eligible for relief under § 212(c) at the time of his immigration hearing.
In any event, the record does not contain sufficient information about the
nature of Villa’s criminal conviction or the equities of his case to enable
us to make such a determination. Nor need we resolve whether Villa must
demonstrate prejudice to obtain relief. Rather, as discussed infra, our
question is whether Villa’s reinstatement proceedings accorded him
adequate due process, given the discretion available to immigration agents
as to how to pursue removal of an alien following the alien’s successful
collateral challenge to the underlying removal order as part of a § 1326
prosecution.
                    VILLA-ANGUIANO V. HOLDER                            7

dated October 10, 2008, reflects confusion regarding the
result of that criminal case. The addendum correctly noted,
“On October 09, 2008, Subject’s case was dismissed for
violation of 8 USC 1326(a) — Deported Alien Found in the
United States.” It went on, however, to state erroneously that
Villa “served 156 days confinement in federal custody for
violation of 8 USC 1326(a) — Deported Alien Found in the
United States,” implying that Villa had been convicted of
illegal reentry (emphases added). The addendum nowhere
indicated the grounds on which the § 1326 indictment was
dismissed or evidenced any awareness by ICE officials that
the district court had held the original removal order invalid.
It concluded with the statement: “Subject’s prior order of
removal by an Immigration Judge will be reinstated on
today’s date.” Villa was immediately removed.

      This petition for review followed.

                                      II.

   The INA’s reinstatement provision, 8 U.S.C § 1231(a)(5),
specifically bars relitigation of the merits of the reinstated
removal order—i.e. determination of an alien’s removability
or eligibility for relief.2     Accordingly, except where




 2
     The provision states in full:

           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
8                 VILLA-ANGUIANO V. HOLDER

constitutional claims or questions of law arise in the context
of reinstatement and “the petitioner can demonstrate a ‘gross
miscarriage of justice’ in the [original removal] proceedings,”
Garcia de Rincon, 539 F.3d at 1138,3 our review of a
reinstatement order is limited to assessing ICE’s
determination of the factual predicates for reinstatement: “(1)
[that] petitioner is an alien, (2) who was subject to a prior
removal order, and (3) who illegally reentered the United
States.” Morales-Izquierdo v. Gonzales, 486 F.3d 484,
495–96 (9th Cir. 2007) (en banc).

   Under 8 C.F.R. § 241.8(a), the regulation implementing
8 U.S.C. § 1231(a)(5), the determination whether an alien
meets the factual predicates for reinstatement is made by an
immigration agent, not a judge; an alien has no right to be
heard by a judge prior to reinstatement of a removal order.
See Morales-Izquierdo, 486 F.3d at 493–95, 497 (upholding


         under this chapter, and the alien shall be removed under
         the prior order at any time after the reentry.

8 U.S.C. § 1231(a)(5).
    3
    Although § 1231(a)(5) limits the scope of judicial review of reinstated
removal orders, § 1252(a)(2)(D) reinstates this court’s jurisdiction over
certain constitutional claims and questions of law. See Garcia de Rincon,
539 F.3d at 1138 (citing §1252(a)(2)(D)); see also Martinez-Merino v.
Mukasey, 525 F.3d 801, 804 (9th Cir. 2008) (applying a gross miscarriage
of justice standard without deciding whether § 1252(a)(2)(D) “vests circuit
courts with the ability to review reinstated removal orders”); Lorenzo v.
Mukasey, 508 F.3d 1278, 1282 (10th Cir. 2007); Debeato v. Att’y Gen. of
the U.S., 505 F.3d 231, 235 (3d Cir. 2007); Ramirez-Molina v. Ziglar,
436 F.3d 508, 513–14 (5th Cir. 2006); cf. Robledo-Gonzales v. Ashcroft,
342 F.3d 667, 682 n.13 (7th Cir. 2003) (discussing the gross miscarriage
of justice standard applied to collateral attacks on prior deportation
proceedings).
                VILLA-ANGUIANO V. HOLDER                      9

the validity of 8 C.F.R. § 241.8 under the INA and the
Constitution). An alien is, however, entitled to notice and an
opportunity to make “a written or oral statement contesting
the determination.” § 241.8(b). Although we have held that
this streamlined reinstatement procedure does not offend due
process, we expressly “[left] open the possibility that
individual petitioners may raise procedural defects in their
particular cases.” Morales-Izquierdo, 486 F.3d at 496.

     Even though an alien is not entitled to a hearing before an
immigration judge on the issue of reinstatement of a prior
removal order, nothing in 8 U.S.C. § 1231(a)(5) or its
implementing regulations deprives the agency of discretion
to afford an alien a new plenary removal hearing.
“Reinstatement of a prior order of removal is not automatic.”
Alcala v. Holder, 563 F.3d 1009, 1013 (9th Cir. 2009). Nor
is it obligatory: “Under 8 U.S.C. § 1231(a)(5), if the Attorney
General finds an alien has reentered this country illegally
after having been removed . . . the prior order can be
reinstated from its original date,” provided the requirements
of 8 C.F.R. § 241.8(a) and (b) have been satisfied. Id.
(emphasis added); accord Galindo-Romero v. Holder,
640 F.3d 873, 879 (9th Cir. 2011). Particularly when there is
any question about whether the requirements of § 241.8 have
been satisfied, and even when they have been, an ICE officer
may decide to forgo reinstatement of a prior order of removal
in favor of initiating new removal proceedings, with the
accompanying procedural rights to counsel and a hearing in
immigration court. See 8 U.S.C. § 1229a(b)(4) (describing an
alien’s rights in removal proceedings).

    ICE regularly exercises “prosecutorial discretion” in “a
broad range of discretionary enforcement decisions,”
including “deciding to issue, reissue, serve, file, or cancel a
10                VILLA-ANGUIANO V. HOLDER

Notice to Appear (NTA) [and] . . . seeking expedited removal
or other forms of removal by means other than a formal
removal proceeding in immigration court.” Memorandum
from John Morton, Director, ICE, on Exercising Prosecutorial
Discretion Consistent with the Civil Immigration
Enforcement Priorities of the Agency for the Apprehension,
Detention and Removal of Aliens, at 2 (June 17, 2011).
Immigration officers “who have authority to institute
immigration removal proceedings or to otherwise engage in
civil immigration enforcement,” id. at 3, “are not only
authorized by law but expected to exercise discretion in a
judicious manner at all stages of the enforcement process,”
Memorandum from Doris Meissner, Commissioner,
Immigration and Naturalization Service, on Exercising
Prosecutorial Discretion, at 1 (Nov. 17, 2000). Thus, ICE
agents, to whom § 1231(a)(5) delegates the decision to
reinstate a prior removal order, may exercise their discretion
not to pursue streamlined reinstatement procedures.

                                  III.

    Villa does not contest the factual predicates for the
reinstatement order. Nor has he asserted a gross miscarriage
of justice in the underlying immigration hearing, which could
justify this court’s review of the constitutionality of the prior
removal order.4 Instead, Villa challenges the propriety of


  4
    The government contends that even if we had jurisdiction to review
Villa’s 1997 removal order under § 1252(a)(2)(D), that jurisdictional
savings clause does not apply when an alien’s petition for review is
untimely under § 1252(b)(1), because not filed within thirty days of the
final order of removal. Because this case does not directly involve a
challenge to the 1997 order, see supra note 1, we need not decide whether
§ 1252(b)(1) would preclude such review.
                   VILLA-ANGUIANO V. HOLDER                               11

reinstating a removal order that has been invalidated on
constitutional grounds for purposes of criminal prosecution.5

    This precise situation has not arisen in any reported cases
of which we are aware. The government explained at oral
argument a likely reason for that gap: “In many cases where
the district court does dismiss the indictment [ICE officers]
go ahead and put the alien in regular removal proceedings.”
That is, rather than reinstating an order found to be an invalid
predicate for a criminal reentry prosecution, the agency often
exercises its discretion to initiate plenary removal
proceedings (with the requisite notice, hearing before an
immigration judge, right to appeal to the Board of
Immigration Appeals, and right to seek judicial review in a
court of appeals), following dismissal of a § 1326 indictment
because of a successful collateral attack on the underlying
removal order. See 8 U.S.C. §§ 1229, 1229a. Here, however,
ICE reinstated Villa’s prior order and executed it as soon as
his criminal case was dismissed, without providing Villa an
opportunity to explain the developments in district court or
correct any misimpressions regarding those developments,
and, it appears, without independently reconsidering its use
of expedited proceedings in light of the constitutional


 5
   Judge Tallman accuses us of advocacy, on the theory that “Villa failed
to make this due process challenge in his briefing.” Dissent at 27; see also
Dissent at 22 n.1. Not so. Before this Court, Villa complained that
immigration officials “did not provide . . . a meaningful opportunity to
contest the reinstatement” of his removal order, as 8 C.F.R. § 241(b)
typically provides, and he sought remand “for proceedings that comport
with Constitutional due process.” Otherwise, reinstatement amounted to
“a continued violation of . . . Constitutional due process rights.” Villa thus
asserted a constitutional violation curable only through additional process,
consistent with § 241.8(b). We therefore must, and do, adjudicate the
merits of that assertion.
12                VILLA-ANGUIANO V. HOLDER

infirmities in the underlying immigration hearing identified
by the district court.

    As explained, an incorrect statement on the addendum to
the Form I-213 states that Villa served time for a § 1326
conviction. This statement indicates that the immigration
agents responsible for executing Villa’s reinstatement order
were either unaware of, or misinformed about, the district
court’s findings regarding the prior removal proceedings, and
so almost surely did not take them into account in
determining how to proceed. Certainly, the Form did not
explain why Villa’s criminal case was dismissed.6 The
government agreed, at argument, that the agency ordinarily
would not have done what it did here.

    To be sure, the pendency of reinstatement proceedings
does not provide an alien with a new avenue to challenge the
underlying removal order. As we made clear in Morales-
Izquierdo, allowing an alien to manufacture an opportunity to
contest his earlier removal by reentering the country illegally,
thereby triggering removal proceedings anew, would create
perverse incentives. See 486 F.3d at 498. But we have not
considered a situation like the present one, in which the
government itself invites judicial scrutiny of the underlying


 6
   Judge Tallman’s contrary reading of the I-213 addendum interpolates
words found nowhere in the actual language. Compare I-213 Form
addendum (Villa “served 156 days confinement in federal custody for
violation of 8 USC 1326(a)”), with Dissent at 26 n.4 (concluding that “the
officer noted Villa had been detained for 156 days awaiting trial on the
charge that he violated § 1326 . . . .” (emphases added)). Just as we
assume in other contexts that “a reasonably competent public official
should know the law,” Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982),
we also assume that immigration officials know the legal difference
between serving time for a particular violation and awaiting trial.
                  VILLA-ANGUIANO V. HOLDER                             13

removal order by instigating a criminal prosecution under
§ 1326. We conclude that when, as a result of such scrutiny,
a district court finds constitutional infirmities in the prior
removal proceedings that invalidate the prior removal for
purposes of criminal prosecution, the agency cannot simply
rely on a pre-prosecution determination to reinstate the prior
removal order. Instead the agency must—as it may well
ordinarily do—(1) provide the alien with an opportunity after
the criminal prosecution is dismissed to make a written or
oral statement addressing the expedited reinstatement
determination in light of the facts found and the legal
conclusions reached in the course of the criminal case; and
(2) independently reassess whether to rely on the order issued
in the prior proceedings as the basis for deportation or instead
to instigate full removal proceedings.7

    We so conclude for the following reasons: The regulation
implementing 8 U.S.C. § 1231(a)(5) requires the immigration
officer effecting reinstatement to “consider all relevant
evidence, including statements made by the alien and any
evidence in the alien’s possession.” 8 C.F.R. § 241.8(a)(3).
The alien must be allowed to make a statement contesting the
reinstatement determination, and the officer “shall consider
whether the alien’s statement warrants reconsideration of the
determination.” § 241.8(b).

    Those regulatory requirements respect an unlawfully
present alien’s right to be heard prior to removal, a right
which the Supreme Court has long recognized as grounded in


  7
    Once ICE complies with these constitutional requirements, it may
exercise its lawful discretion however it sees fit. In this sense, we agree
with our dissenting colleague that the agency need not “reach a different
result” on remand. Dissent at 28.
14                  VILLA-ANGUIANO V. HOLDER

the Due Process Clause.8 Due process, in turn, entitles an
unlawfully present alien to consideration of issues relevant to
the exercise of an immigration officer’s discretion. Larita-
Martinez v. INS, 220 F.3d 1092, 1095 (9th Cir. 2000), for
example, held that due process required the Board of
Immigration Appeals to consider “all relevant evidence
submitted on appeal” when reviewing the wholly
discretionary denial of an application for suspension of
deportation.9


  8
    See, e.g., Chew v. Colding, 344 U.S. 590, 597–98 (1953) (“Although
Congress may prescribe conditions for [an alien’s] expulsion and
deportation, not even Congress may expel him without allowing him a fair
opportunity to be heard.”); Yamataya v. Fisher, 189 U.S. 86, 101 (1903)
(“[I]t is not competent for . . . any executive officer . . . arbitrarily to cause
an alien who has entered the country, and has become subject in all
respects to its jurisdiction, and a part of its population, although alleged
to be illegally here, to be taken into custody and deported without giving
him all opportunity to be heard upon the questions involving his right to
be and remain in the United States.”); cf. Shaughnessy v. United States ex
rel. Mezei, 345 U.S. 206, 211 (1953) (“[A]liens who have once passed
through our gates, even illegally, may be expelled only after proceedings
conforming to traditional standards of fairness encompassed in due
process of law.”).
 9
    The dissent marshals Heckler v. Chaney, 470 U.S. 821, 831 (1985), to
dispute the existence of any cognizable liberty interest “in how an agency
exercises its purely discretionary decision on whether to prosecute.”
Dissent at 23. Heckler, however, held only that an administrative
agency’s decision not to act was unreviewable under 5 U.S.C. § 701(a)(2),
explaining “when an agency refuses to act it generally does not exercise
its coercive power over an individual’s liberty or property,” and thus
leaves the courts with little to review. Heckler, 470 U.S. at 832, 837–38.
In contrast, where, as here, an agency has taken or is proposing to take
action, “that action itself provides a focus for judicial review.” Id. at 832.
Heckler thus does not relieve the courts of their duty to review the
constitutionality of agency action, whether discretionary or otherwise,
when called upon to do so.
                VILLA-ANGUIANO V. HOLDER                     15

     For the requirements of § 241.8(a)(3), (b) to function as
the requisite “procedural safeguards” of the alien’s right to
due process in the context of streamlined proceedings, see
Morales-Izquierdo, 486 F.3d at 496, they must apply at the
relevant time. “The fundamental requirement of due process
is the opportunity to be heard at a meaningful time and in a
meaningful manner.” Mathews v. Eldridge, 424 U.S. 319,
333 (1976) (internal quotation marks omitted). For Villa to
have had a meaningful opportunity to address the proposed
reinstatement of his removal order, then, he must have been
afforded that opportunity at a time and in a manner that
would allow him to present pertinent information. As the
government indicated at oral argument, the district court’s
invalidation of Villa’s 1997 removal order as a basis for
§ 1326 prosecution, due to constitutional infirmities in the
original removal proceedings, is ordinarily pertinent to the
agency’s decision as to whether and how to proceed with his
removal.

    Moreover, the agency must consider all favorable and
unfavorable factors relevant to the exercise of its discretion;
failure to do so constitutes an abuse of discretion. See An Na
Peng v. Holder, 673 F.3d 1248, 1253 (9th Cir. 2012) (the BIA
abuses its discretion when it fails to consider all relevant
factors bearing on the balance of equities or an application for
relief); Xiao Fei Zheng v. Holder, 644 F.3d 829, 833 (9th Cir.
2011) (same); cf. United States v. $11,500.00 in U.S.
Currency, 710 F.3d 1006, 1011 (9th Cir. 2013) (a district
court abuses its discretion if it fails to consider factors
relevant to the exercise of its discretion). If the procedures
used by ICE do not assure that the decision-makers obtain the
requisite information before the decision is made, then it is
unlikely that the decision made will be a proper one under the
abuse of discretion standard.
16             VILLA-ANGUIANO V. HOLDER

    The Third Circuit has considered a somewhat analogous
circumstance, in which an alien contested reinstatement on
the asserted grounds that his prior removal order was
invalidated by a court and that he did not reenter the country
illegally. See Ponta-Garcia v. Att’y Gen. of the U.S.,
557 F.3d 158, 164 (3d Cir. 2009). Recognizing the
petitioner’s atypical circumstances, the Third Circuit
remanded the case to ICE for consideration of the alien’s
assertions. Id. at 165 (citing 8 C.F.R. § 241.8(a)(3)). The
court observed that although reinstatement pursuant to the
streamlined procedures adopted by Congress will be
uncontested in most cases, in the unusual instance in which
a petitioner raises issues that could affect whether ICE
pursues removal without a prior hearing, “more is required
[from the agency] than it appears was done here.” Id.

                             IV.

     The government acknowledges that, had it known of the
district court’s findings, it quite possibly would have
exercised its discretion not to pursue reinstatement of Villa’s
1997 removal order. Consequently, Villa was prejudiced by
the ICE agents’ misinformation or lack of information
regarding his criminal prosecution, as well as by the absence
of an opportunity to contest the reinstatement determination
at a meaningful time—namely, before the reinstatement order
finally issued and was executed, and after new, relevant
circumstances had arisen. Accordingly, we remand to ICE to
provide that opportunity and to reconsider its reinstatement
determination in light of the district court’s findings
regarding Villa’s 1997 removal proceedings. We express no
view as to the outcome of that determination on remand.
               VILLA-ANGUIANO V. HOLDER                     17

   The petition is GRANTED, the reinstatement order is
VACATED, and we REMAND to ICE for reconsideration
and further proceedings consistent with this disposition.



TALLMAN, Circuit Judge, dissenting:

    The alien, a convicted killer who illegally re-entered the
United States after his prior deportation, has once again been
removed after the district court dismissed his 2008 criminal
re-entry charge because the 1997 removal order was
technically flawed. Congress has by statute strictly limited
what process is due to a petitioner who re-enters after a prior
deportation. Our court sitting en banc has carefully limited
the scope of our review of reinstated removal orders. See
generally Morales-Izquierdo v. Gonzales, 486 F.3d 484 (9th
Cir. 2007) (en banc). My colleagues in the majority
nonetheless create a new procedural rule by judicial
legislation, which the Supreme Court has held we may not do.

    The majority holds that whenever the United States
chooses to criminally prosecute an alien who unlawfully
entered the country and fails in that prosecution, an
immigration officer—who has already complied with all of
the statutory and regulatory requirements for reinstatement of
a prior removal order—must give the alien a new opportunity
to implore the officer to decline reinstatement and instead
open new removal proceedings. It might be a perfectly
sensible rule if Congress or the agency prescribed it. But
neither Congress nor the agency has done so. Instead, the
majority’s new rule has only one source: the whole cloth
from which the majority has woven it.
18             VILLA-ANGUIANO V. HOLDER

    The Supreme Court has told us it is “improper simply to
impose deportation procedures . . . because the reviewing
court may find them preferable.” Landon v. Plasencia,
459 U.S. 21, 35 (1982). In an effort to impose its preferred
procedures into ICE’s process for reinstatement of removal
orders, the majority has distorted constitutional due process
requirements and undercut controlling en banc precedent. I
respectfully dissent.

                               I

    In 1997, the government removed Alejandro Israel Villa-
Anguiano (“Villa”) after he finished serving his sentence for
voluntary manslaughter. Villa does not dispute that he was
the alien subject to that removal order. Nor does he dispute
that in 2001, he knowingly re-entered the country without
permission and remained until he was apprehended on May
3, 2008. And he cannot dispute that the government provided
him with notice and an opportunity to be heard regarding the
reinstatement of his prior removal order—an opportunity he
waived on May 4, 2008, when he signed underneath a
checked box stating, “I do not wish to make a statement
contesting this determination.”

    The majority concedes that as of that date, the
government needed no more to exercise its discretion to
reinstate his prior order of removal and summarily deport him
from the United States. However, the immigration officer
could not remove Villa immediately because the United
States opted to prosecute Villa for criminal re-entry under
8 U.S.C. § 1326. The majority now holds that when the
government chose to criminally prosecute Villa and the
district court later dismissed the charge after Villa brought a
collateral attack on the 1997 removal order, this created a
               VILLA-ANGUIANO V. HOLDER                   19

new requirement that the immigration officer give Villa yet
another opportunity to be heard. The officer must extend this
opportunity, says the majority, not so that Villa may contest
his eligibility for reinstatement, but rather so that he may
argue the agency should exercise its prosecutorial discretion
to instead open new removal proceedings. The majority must
concede this requirement has no basis in either statutory or
regulatory law. But it concludes ICE nonetheless abused its
discretion and remands so the agency must reconsider its
prosecutorial decision, even though Villa is long gone.

    The reinstatement statute requires the Department of
Homeland Security to do nothing more to reinstate the
removal order that Villa knowingly flaunted. In 8 U.S.C.
§ 1231(a)(5), Congress “explicitly insulate[d] the removal
orders from review[] and generally foreclose[d] discretionary
relief from the terms of the reinstated order.” Fernandez
Vargas v. Gonzales, 548 U.S. 30, 35 (2006). The statute
provides in no uncertain terms:

       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
       chapter, and the alien shall be removed under
       the prior order at any time after the reentry.

8 U.S.C. § 1231(a)(5).
20             VILLA-ANGUIANO V. HOLDER

    The Department of Homeland Security has promulgated
8 C.F.R. § 241.8 to implement the reinstatement statute.
Under the regulation, the immigration officer who issues the
reinstatement order must analyze three criteria.

    First, the officer must confirm that the alien has been
subject to a prior order of removal. 8 C.F.R. § 241.8(a)(1).
This requires the officer to obtain the prior order, which the
officer in this case did.

    Second, the officer must confirm the identity of the
alien—that is, make sure that the person in question and the
alien who was previously removed are in fact one and the
same. Id. § 241.8(a)(2). Villa does not dispute that the
officer did this too.

    Third, the officer must confirm that the alien “unlawfully
reentered the United States.” To do this, the officer must
“consider all relevant evidence” and attempt to verify any
claim that the alien “was lawfully admitted,” including a
check of any databases available to the officer. Id.
§ 241.8(a)(3). Villa, of course, made no such claim, and how
could he? Subject to a removal order that required him to
stay outside of the United States, Villa nonetheless
surreptitiously re-entered the country. He did so without the
permission of the United States government. He therefore re-
entered the country “unlawfully.”

    The district court proceedings could not render Villa’s re-
entry “lawful.” The district court had jurisdiction only to
determine whether Villa’s re-entry was criminal, not whether
it was lawful. The district court’s conclusion that Villa did
not commit a new crime in no way alters the inquiry for the
immigration officer conducting a reinstatement, which is
               VILLA-ANGUIANO V. HOLDER                     21

simply: did this alien violate a removal order when he
entered the United States? The answer unquestionably is yes.
Villa unlawfully re-entered the United States. If the agency
decides he must go, then he must go.

    Therefore, both the laws enacted by Congress and the
Department of Homeland Security’s permissible construction
of those laws allowed the immigration officer to reinstate
Villa’s prior order of removal, regardless of whether the
district court concluded that Villa’s re-entry also constituted
a federal crime. On the limited review we may conduct of a
reinstatement proceeding, this suffices to deny relief.
Morales-Izquierdo, 486 F.3d at 491.

                              II

    The majority implicitly agrees that under the law as it
currently stands, Villa is eligible for reinstatement. My
colleagues must acknowledge that although a district court
may determine that a removal order does not validly support
a criminal prosecution, that same court has no jurisdiction to
grant relief from an administrative order of removal. The
majority also knows that under our en banc decision in
Morales-Izquierdo v. Gonzales, we do not allow aliens who
have defied removal orders and re-entered the United States
to put themselves in a better position than aliens “who respect
our laws and wait patiently outside our borders seeking
lawful admission.” 486 F.3d at 498. So without any statutory
or regulatory foundation to grant relief, the majority falls
back on a dubious procedural due process analysis.

    If I understand the majority argument, it proceeds in three
steps. First, the immigration officer has the discretion to
choose to initiate new removal proceedings instead of
22                VILLA-ANGUIANO V. HOLDER

reinstatement, even if the alien is, by statute, already
susceptible to immediate reinstatement. Second, if the
district court dismisses the criminal charge for illegal re-entry
because the alien demonstrated fundamentally unfair
infirmities in the original deportation order, the immigration
officer may be more likely to start new removal proceedings
instead of choosing reinstatement. Therefore, if the alien
succeeds in his defense to the criminal charge, the Due
Process Clause now requires the immigration officer to give
the defendant yet another opportunity to be heard—not to
argue that the alien is ineligible for reinstatement (because
8 U.S.C. § 1231(a)(5) and 8 C.F.R. § 241.8 both say Villa
clearly is eligible), but to instead argue that new removal
proceedings would be the more sensible exercise of the
agency’s prosecutorial discretion.1

    One very important analytical step is missing: the
majority provides next to no analysis regarding why the Due
Process Clause compels such a result. Sure, the majority
affords us a cursory citation to Mathews v. Eldridge, 424 U.S.
319 (1976), a case governing the interest in Social Security
benefits, “a statutorily created ‘property’ interest.” Id. at 332.
But it provides no case telling us why the Due Process Clause
requires that an agency must provide an alien the opportunity


 1
   The majority’s due process argument is a nice piece of advocacy—and
an argument I fail to find anywhere in Villa’s briefing. I thought the rule
was that petitioners for relief waive any arguments they fail to raise in
briefing, see Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079–80 (9th Cir.
2013) (“Lopez-Vasquez waived his challenge to the BIA’s denial of his
motion to reopen by failing to argue it in his brief.”), but the majority
believes a few scattered references to “due process” do all the necessary
work. The government, meanwhile, was not provided any meaningful
opportunity to respond to the substance of the due process argument the
majority has now conjured into an opinion.
                VILLA-ANGUIANO V. HOLDER                      23

to tell the agency how it should exercise its prosecutorial
discretion.

    Although aliens are entitled to due process of law, they
“must in the first instance possess a liberty or property
interest.” Valencia-Alvarez v. Gonzales, 469 F.3d 1319, 1330
n.13 (9th Cir. 2006). Although we have considered aliens to
have such an interest when they are eligible for discretionary
relief from removal, we certainly have never held they have
any liberty or property interest in how an agency exercises its
purely discretionary decision on whether to prosecute. “[A]n
agency’s decision not to prosecute or enforce, whether
through civil or criminal process, is a decision generally
committed to an agency’s absolute discretion.” Heckler v.
Chaney, 470 U.S. 821, 831 (1985). This common-sense
conclusion derives from the steadfast principle that even
citizens are not “entitled to judicial oversight or review of the
decision to prosecute.” Albright v. Oliver, 510 U.S. 266, 274
(1994) (quoting Gerstein v. Pugh, 420 U.S. 103, 114 (1975)).
Just as a criminal suspect has no procedural due process right
to a hearing before a prosecutor to argue for a more lenient
charge, Villa possesses no right to plead for any more than
the law provides. This is a fundamental separation of powers
issue, which the majority ignores when declaring remand is
nonetheless required because the agency somehow abused its
absolute discretion.

    “While aliens have a right to fair procedures, they have no
constitutional right to force the government to re-adjudicate
a final removal order by unlawfully reentering the country.”
Morales-Izquierdo, 486 F.3d at 498. In a reinstatement
proceeding, “an alien’s rights and remedies are severely
limited.” Id. at 497. Villa possesses no fewer rights today,
having had his removal order reinstated, than he did the day
24                VILLA-ANGUIANO V. HOLDER

he unlawfully re-entered the country because “[t]he
reinstatement order imposes no civil or criminal penalties,
creates no new obstacles to attacking the validity of the
removal order, and does not diminish petitioner’s access to
whatever path for lawful entry into the United States might
otherwise be available to him under the immigration laws.”
Id. at 498 (citations omitted).

     Those laws grant Villa no entitlement to new removal
proceedings. Perhaps Villa would possess a more concrete
interest if the agency’s regulations in any way spelled out this
discretion which the majority insists the agency regularly
practices.2 Yet the majority cites no statute or regulation that
delineates the criteria by which the agency must exercise its
prosecutorial discretion specifically in the context of
reinstatement—or that specifies how Villa’s successful
defense at his criminal trial should impact that discretionary
administrative decision whether to once again remove him.
The majority instead misleadingly cites to the requirement in
8 C.F.R. § 241.8(a)(3) that the immigration officer “consider
all relevant evidence,” when it can easily ascertain that the
regulation only requires the officer to consider all evidence
relevant to determining whether the alien unlawfully re-
entered the country—which Villa unquestionably did. The
district court’s conclusion in sustaining his challenge to the
criminal indictment was irrelevant to that administrative
determination.


     2
       The absence of any statutory or regulatory standard whatsoever
establishing this discretion easily distinguishes this case from Larita-
Martinez v. INS, 220 F.3d 1092 (9th Cir. 2000), where federal law clearly
established the petitioner’s right to seek suspension of deportation, even
if it was “wholly discretionary,” and the alleged violation occurred during
an appeal to the BIA, which was provided to the petitioner by law.
                   VILLA-ANGUIANO V. HOLDER                             25

    To the extent the majority relies on an internal ICE
memorandum—which does not specifically address
reinstatement—“[i]t is well settled that internal policy
manuals of federal agencies do not generally create due
process rights in others.” James v. U.S. Parole Comm’n,
159 F.3d 1200, 1206 (9th Cir. 1998). The memorandum itself
explains that “there is no right to the favorable exercise of
discretion by the agency,” and therefore the memorandum
cautions that it “may not be relied upon to create any right or
benefit, substantive or procedural.” Memorandum from John
Morton, Director, ICE, on Exercising Prosecutorial
Discretion Consistent with the Civil Immigration
Enforcement Priorities of the Agency for the Apprehension,
Detention and Removal of Aliens, at 6 (June 17, 2011).3

     The standards that are actually set out in regulatory and
statutory law establish that when ICE reinstates an alien’s
removal order, the alien only possesses an interest in how the
ICE officer resolves three questions: (1) whether the alien
was subject to a prior order of removal; (2) whether this alien
is the alien described in that order; and (3) whether the alien
illegally re-entered the country. On May 4, 2008, when he
waived his opportunity to be heard, Villa and the agency
possessed all of the information that would be relevant to
those three determinations. His opportunity to be heard, at
that time, could not have been more meaningful.


 3
   That memorandum also supports the immigration officer’s decision in
Villa’s case. The memorandum lists several “negative factors” that should
“prompt particular care and consideration” when ICE officers are
“exercising prosecutorial discretion.” They include “serious felons” and
aliens like Villa-Anguiano “with a record of illegal-re-entry.” Id. at 5. If
these are the factors that influence the exercise of discretion, how can my
colleagues say that discretion was abused here?
26                 VILLA-ANGUIANO V. HOLDER

    The majority agrees that Villa meets all of the
requirements for reinstatement of a removal order under
current statutory and regulatory law and that he waived his
opportunity to contest whether those requirements were met.
So how could the agency have abused its discretion by
complying with federal law? Regardless of the answer, we
lack jurisdiction to review an abuse of discretion argument
that is merely recharacterized as a due process argument,
Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir.
2001)—precisely what the majority opinion does.4

    To hold that Villa has a liberty interest in any
determination other than whether he unlawfully re-entered the
United States in defiance of a removal order would “create a
new and wholly unwarranted incentive for aliens who have
previously been removed to reenter the country illegally in
order to take advantage of this self-help remedy.” Morales-
Izquierdo, 486 F.3d at 498. Because there is no foundation in
our due process jurisprudence to hold that an alien possesses



  4
    There is no basis for the majority’s conclusion that the immigration
official proceeded on bad information regarding Villa’s criminal
prosecution. The addendum to the Record of Deportable/Inadmissible
Alien stated that Villa “served 156 days confinement in federal custody
for violation of 8 USC 1326(a) – Deported Alien Found in United States.”
But the form also stated that “Subject’s case was dismissed for violation
of 8 USC 1326(a) – Deported Alien Found in the United States.”
(emphasis added). If the majority intends to take the first sentence at face
value, then it must believe as well that the “reasonably competent”
immigration officer somehow believed that Villa’s conviction was
dismissed because the court found Villa violated the statute. But that can’t
be right. It is more reasonable to read the two sentences in conjunction
and conclude that the officer noted Villa had been detained for 156 days
awaiting trial on the charge that he violated § 1326, and that five months
later the court dismissed the charge.
               VILLA-ANGUIANO V. HOLDER                     27

such a right, I cannot join a majority opinion that so casually
accords this newly minted right to Villa.

    Even if such a liberty interest existed, an alien bears the
burden of proving the alleged violation prejudiced his or her
interest. Cano-Merida v. INS, 311 F.3d 960, 965 (9th Cir.
2002). Because Villa failed to make this due process
argument in his briefing—which the majority has chosen to
excuse and make for him—he made no showing of prejudice.
But the majority argues that prejudice exists because the
agency “quite possibly would have exercised its discretion
not to pursue reinstatement of Villa’s 1997 removal order.”
Majority Op. at 16.

     This assertion opens Pandora’s box. Let us not forget that
as he stands today, Villa—who committed a serious felony
offense involving the taking of a life—cannot be criminally
prosecuted for re-entering the United States. He can enter the
country illegally as he pleases, and under his current removal
order, the only thing the United States government can do is
reinstate that order of removal and deport him again. It is
highly unlikely that in any new removal proceedings, the
agency would grant discretionary relief to a convicted killer
who also ignores prior deportations by returning illegally. It
is far more likely that Villa would be removed once again, but
this time with a new removal order that would carry heavy
criminal consequences for his next re-entry. Although Villa
has no right to insist on such a proceeding, the majority has
overstated the damage, if any, that the reinstatement of
Villa’s removal order has caused to his interests.
28              VILLA-ANGUIANO V. HOLDER

                               III

    The majority concedes a point that should be absolutely
clear: on remand, ICE has absolutely no obligation to reach
a different result. Although by now the government has
surely recognized it cannot punish Villa with anything more
than deportation, it may, under 8 U.S.C. § 1231(a)(5) and
8 C.F.R. § 241.8, reinstate his prior order of removal because
Villa meets each of the statutory and regulatory requirements
for reinstatement.

    The majority opinion amounts to no more than a thinly
veiled suggestion, cloaked in the mantle of due process, that
ICE reconsider its decision to reinstate the prior removal
order and instead open new removal proceedings from which
years of litigation will ensue. Perhaps that would be the most
sensible course of action, so that next time Villa would have
no technical defense to a new felony conviction under § 1326.
But that is a decision for the agency to make by balancing its
interest in the use of its limited resources with its interest in
securing a removal order that can better support future
criminal charges. Courts have no right to dictate that
executive decision or to establish new criteria the Executive
Branch must employ to make it.

    The majority opinion unnecessarily intrudes on the
Executive Branch’s administration of immigration policy and
not only tells the Department of Homeland Security the
criteria it must consider in the exercise of its prosecutorial
discretion, but it also announces a novel holding that an alien
who unlawfully re-enters the country has a due process right
to influence the exercise of that prosecutorial discretion. Its
rule adds requirements that have no basis in law. The
Supreme Court has clearly told us not to do this. Landon,
               VILLA-ANGUIANO V. HOLDER                   29

459 U.S. at 35. Rather than remand on the basis of these
nonexistent requirements, I would deny relief and leave Villa
no worse off than where he stood before he willfully defied
his removal order and unlawfully re-entered the country. I
respectfully dissent.
