Nos , UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT. JOSE PEREZ-GARCIA, Petitioner,

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1 Nos , UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT JOSE PEREZ-GARCIA, Petitioner, v. LORETTA E. LYNCH, ATTORNEY GENERAL, Respondent. ON PETITIONS FOR REVIEW FROM DECISIONS OF THE DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT AGENCY NO. A BRIEF OF THE NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD AS AMICUS CURIAE IN SUPPORT OF THE PETITIONER Trina Realmuto National Immigration Project of the National Lawyers Guild 14 Beacon Street, Suite 602 Boston, MA (617) ext. 8 (617) (fax)

2 CORPORATE DISCLOSURE STATEMENT UNDER FEDERAL RULE OF APPELLATE PROCEDURE (FRAP) 26.1 I, Trina Realmuto, attorney for the Amicus Curiae, the National Immigration Project of the National Lawyers Guild, certify that this organizations is a non-profit organization that do not have any parent corporation or issue stock and consequently there exists no publicly held corporation which owns 10% or more of their stock. Dated: August 17, 2015 s/ Trina Realmuto Trina Realmuto National Immigration Project of the National Lawyers Guild 14 Beacon Street, Suite 602 Boston, MA (617) ext. 8 (617) (fax)

3 TABLE OF CONTENTS CORPORATE DISCLOSURE STATEMENT Page I. INTRODUCTION AND SUMMARY OF ARGUMENT..1 II. III. IV. IV. EXHIBIT A STATEMENT OF AMICUS..4 BACKGROUND....4 A. VOLUNTARY DEPATURE...5 B. REINSTATEMENT OF REMOVAL..6 ARGUMENT A. THE COURT HAS JURISDICTION TO REVIEW THE DENIAL OF PETITIONER S MOTION TO REOPEN THE REINSTATEMENT ORDER Section of 8 C.F.R. Confers Authority to Reopen DHS-Issued Removal Orders As this Case Illustrates, DHS Acknowledges the Availability of Reopening DHS-Issued Orders under Section Congress Provided for Judicial Review over Motions to Reopen DHS-Issued Orders in 8 U.S.C. 1252(a) and (b)(6) Exercising Jurisdiction is Consistent with the Presumption In Favor of Judicial Review Tapia-Lemos is Neither Binding Nor Applicable B. THE COURT SHOULD VACATE THE REINSTATEMENT ORDER AND REMAND FOR ICE TO RECONSIDER ITS CHARGING DECISION BASED ON RELAVANT FACTORS.20 CONCLUSION CERTIFICATE OF SERVICE i

4 TABLE OF AUTHORITIES Cases Page Aiyadurai v. INS, 683 F.2d 1195 (8th Cir. 1982) Aguilar-Aguilar v. Napolitano, 700 F.3d 1238 (10th Cir. 2012) 10 Arevalo v. Ashcroft, 344 F.3d 1 (1st Cir. 2003)..16 Avila-Macias v. Ashcroft, 328 F.3d 108 (3d Cir. 2003).16 Briseno-Sanchez v. Heinauer, 319 F.3d 324 (8th Cir. 2003).2, 16 Carrete-Michel v. Immigration & Naturalization Service, 749 F.2d 490 (8th Cir. 1984)...25 Chay Ixcot v. Holder, 646 F.3d 1202 (9th Cir. 2011) 16 Cheng Fan Kwok v. Immigration & Naturalization Serv., 392 U.S. 206 (1968)..16, 17 Dada v. Mukasey, 554 U.S. 1 (2008)..5, 12 Duran-Hernandez v. Ashcroft, 348 F.3d 1158 (10th Cir. 2003) 16 Escoto-Castillo v. Holder, 658 F.3d 864 (8th Cir. 2011) 3, 13, 14 Evers v. Mukasey, 288 F. App x 441, 442, 2008 WL (9th Cir. 2008) 14, 15 Garcia-Villeda v. Mukasey, 531 F.3d 141 (2d Cir. 2008). 16 Giova v. Rosenberg, 379 U.S. 18 (1964)...17 Gomez-Chavez v. INS, 308 F.3d 796 (7th Cir. 2002). 16 Immigration & Naturalization Serv. v. Jong Ha Wang, 450 U.S. 139 (1981)...17 INS v. St. Cyr, 533 U.S. 289 (2001)...11, 17 Jalloh v. Orders of the Bd. of Immigration Appeals, 423 F.3d 894 (8th Cir. 2005)..16 Judulang v. Holder, 132 S. Ct. 476 (2011)...passim Kucana v. Holder, 558 U.S. 233 (2010).16, 17, 18 Lopez v. Heinauer, 332 F.3d 507 (8th Cir. 2003) 16 Matter of Arguelles, 21 I&N Dec. 811 (BIA 1999)..5 Matter of Buscemi, 19 I&N Dec. 628 (BIA 1988) 24 Matter of C.V.T., 22 I&N Dec. 7 (BIA 1998).24 Matter of E-R-M & L-R-M, 25 I&N Dec. 520 (BIA 2011) 20 Matter of G-N-C-, 22 I&N Dec. 281 (BIA 1998)..20 McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479 (1991)..17 Moncrieffe v. Holder, 133 S. Ct (2013) 11 Ojeda-Terrazas v. Ashcroft, 290 F.3d 292 (5th Cir. 2002) Ponta-Garca v. Ashcroft, 386 F.3d 341 (1st Cir. 2004).3, 10 Reyes Mata v. Lynch, 135 S. Ct (2015). 18 Salas-Caballero v. Lynch, 786 F.3d 1077 (8th Cir. 2015)..23 ii

5 Sarmiento-Cisneros v. Ashcroft, 381 F.3d 1277 (11th Cir. 2004).. 16 Solis v. Summit Contrs., Inc., 558 F.3d 815 (8th Cir. 2009).. 10 Tapia-Lemos v. Holder, 696 F.3d 687 (7th Cir. 2012)..3, 18, 19 Velasquez-Gabriel v. Crocetti, 263 F.3d 102 (4th Cir. 2001) 16 Villa-Anguiano v. Holder, 727 F.3d 873 (9th Cir. 2013).20, 24 Warner v. Ashcroft, 381 F.3d 534 (6th Cir. 2004).. 16 Statutes 5 U.S.C. 706(2)(A) U.S.C. 1101(a)(47)(B) U.S.C. 1182(c) (1995) U.S.C. 1105a(a) (1995) U.S.C. 1225(b) U.S.C. 1228(b) passim 8 U.S.C. 1229a U.S.C. 1229(b)(3) U.S.C. 1229b(1) U.S.C. 1229c(a)(1) U.S.C. 1229c(b)(1)..1, 5 8 U.S.C. 1229c(b)(3) U.S.C. 1229a(c)(5).22 8 U.S.C. 1229c(d) U.S.C. 1231(a)(5)... passim 8 U.S.C U.S.C. 1252(a) passim 8 U.S.C. 1252(b)(1) U.S.C. 1252(b)(6)...3, 15, 19 8 U.S.C. 1252(d)...14 Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No , 110 Stat (Sept. 30, 1996)..17. Regulations 8 C.F.R , 9 8 C.F.R. 3.8(a) (1979) C.F.R C.F.R passim 8 C.F.R (a)(1)(i)..9, 14 8 C.F.R (1995).17 8 C.F.R , 9 iii

6 8 C.F.R (b)(4)(ii) 11 8 C.F.R C.F.R passim 8 C.F.R (a) 6, 7 8 C.F.R (a)(3) 7 8 C.F.R (b)..7, 10 8 C.F.R C.F.R. 245a..8 8 C.F.R. 274a.9..8, 9 8 C.F.R (1995).17 8 C.F.R C.F.R (c)(3) 5 8 C.F.R (c)(3)(v) C.F.R (c)(4) 5 8 C.F.R (d) C.F.R (f)...5 Miscellaneous Memorandum for All ICE Employees, from John Morton, Director, Department of Homeland Security, Re: Civil Immigration Enforcement: Priorities for the Apprehension, Detention and Removal of Aliens (Mar. 2, 2011)..26 Memorandum for All Field Officers Directors, All Special Agents in Charge, All Chief Counsel, Re: Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for Apprehension, Detention and Removal of Aliens (June 17, 2011) , 27 New York Immigrant Representation Study, Accessing Justice II: A Model for Providing Counsel to New York Immigrants in Removal Proceedings (2012).12 Kate M. Manual and Todd Garvey, Legislative Attorneys, Congressional Research Service, Prosecutorial Discretion in Immigration Enforcement: Legal Issues (Dec. 27, 2013) 21 Mark Noferi, Cascading Constitutional Deprivation, 18 Mich. J. Race & L. 63 (2012) iv

7 I. INTRODUCTION AND SUMMARY OF ARGUMENT 1 Pursuant to FRAP 29(b), the National Immigration Project of the National Lawyers Guild proffers this brief to assist the Court in determining whether U.S. Immigration and Customs Enforcement (ICE), a component agency of the Department of Homeland Security (DHS), erroneously ordered Petitioner removed under 8 U.S.C. 1231(a)(5) (No ) and subsequently denied his motion to reopen and rescind that order under 8 C.F.R (No ). Under 8 U.S.C. 1231(a)(5), ICE officers may subject individuals who have reentered the United States after a prior removal order to a summary removal process whereby the prior order is reinstated and the person is removed without an evidentiary hearing and without the opportunity to apply for relief. All parties agree that individuals who have reentered after a prior order of voluntary departure are not subject to 1231(a)(5). In this case, Petitioner did not depart after a prior removal order; rather, he timely departed after an order of voluntary departure entered at the conclusion of removal proceedings in lieu of a removal order. 8 U.S.C. 1229c(b)(1). Six days after ICE issued the reinstatement order, Petitioner timely moved to reopen 1 Amicus curiae states pursuant to FRAP 29(c)(5) that no party s counsel authored the brief in whole or in part; that no party or party s counsel contributed money that was intended to fund preparing or submitting the brief; and that no person other than the amicus curiae, its members, and their counsel contributed money that was intended to fund preparing or submitting the brief. 1

8 and rescind that order for proper cause shown pursuant to 8 C.F.R , presenting evidence of his timely departure in the form of a Mexican entry record and his sworn declaration. Administrative Record (AR) at Petitioner later supplemented the motion with additional documentation, including an excerpt from an official Mexican Journal addressing the entry record and his second sworn declaration. AR and ICE improperly denied the motion, requiring a departure verification form that Petitioner was not obligated to obtain, requiring authenticated of the Mexican entry document even though the document was self-authenticating, blaming Petitioner for ICE s unlawful deportation of him in 2000, and discounting his sworn declarations. AR This Court has jurisdiction to review both the reinstatement order against Petitioner and ICE s denial of his motion to reopen and rescind that order. Although this Court s jurisdiction to review reinstatement orders is wellestablished, see, e.g., Briseno-Sanchez v. Heinauer, 319 F.3d 324, 326 (8th Cir. 2003), the Court s jurisdiction to review the denial of a motion to reopen a reinstatement order under 8 C.F.R is an issue of first impression. Section of 8 C.F.R. confers DHS with authority to reopen decisions 2 Amicus agrees that Petitioner met the extremely low proper cause standard for reopening and that ICE s denial of his motion to reopen was erroneous. See Petitioner s Opening Brief at The merits of those arguments, however, are beyond the scope of this brief, which focuses on this Court s jurisdiction to review the denial. 2

9 issued by DHS through any of its component agencies, including ICE, U.S. Customs and Border Protection (CBP), and U.S. Citizenship and Immigration Services (USCIS). As this case illustrates, and as the government argues, and courts including this Court have acknowledged, Section is available to reopen DHS-issued removal orders under 8 U.S.C. 1231(a)(5), 1228(b) and 1235(b). See Escoto-Castillo v. Holder, 658 F.3d 864, 866 (8th Cir. 2011). The plain language of the judicial review statute, 8 U.S.C. 1252, provides for judicial review over all motions to reopen, including Section motions. Accord Ponta-Garca v. Ashcroft, 386 F.3d 341, 343 (1st Cir. 2004). Section 1252(a) vests the courts of appeals with jurisdiction over final removal orders and Section 1252(b)(6) mandates consolidation of review of the denial of any motion to reopen with that of the removal order. Accordingly, and consistent with the presumption in favor of judicial review, Congress intended to provide judicial review over denials of motions to reopen reinstatement orders. The Seventh Circuit s contrary decision in Tapia-Lemos v. Holder, 696 F.3d 687, 690 (7th Cir. 2012) is not binding on this Court and is distinguishable. In the alternative, the Court should vacate the reinstatement order and remand the case to ICE to conduct the discretionary analysis that it was obligated but failed to conduct at the time it issued the reinstatement order. The administrative record evidences that ICE failed to consider any of the 3

10 germane factors the Supreme Court identified as relevant to the exercise of discretion in making charging determinations. Judulang v. Holder, 132 S. Ct. 476, 485 (2011). The record also evidences that ICE failed to consider the appropriate operation of the immigration system, id., including whether Petitioner qualified for consideration of prosecutorial discretion under ICE policy in effect at the time, based on his U.S. citizen wife and four U.S. citizen children. II. STATEMENT OF AMICUS The National Immigration Project of the National Lawyers Guild is a nonprofit membership organization of immigration attorneys, legal workers, grassroots advocates, and others working to defend immigrants rights and to secure a fair administration of the immigration and nationality laws. The organization has an interest in ensuring that ICE does not unlawfully subject noncitizens who previously departed under a voluntary departure order to 1231(a)(5), that ICE properly considers evidence of compliance with voluntary departure orders, that this Court exercises jurisdiction over denials of motions to reopen reinstatement orders, and that ICE follows the Supreme Court s admonishment to make charging decisions only after considering all relevant factors. III. BACKGROUND This section sets forth an overview of the voluntary departure and reinstatement of removal statutes and implementing regulations. 4

11 A. VOLUNTARY DEPARTURE Voluntary departure is a form of discretionary form that allows certain favored noncitizens to leave the country willingly and avoid certain statutory penalties. See generally Dada v. Mukasey, 554 U.S. 1, 8-12 (2008); Matter of Arguelles, 21 I&N Dec. 811, (BIA 1999). DHS may grant voluntary departure in lieu of being subject to [removal] proceedings or an immigration judge (IJ) may grant voluntary departure prior to the completion of such proceedings or at the conclusion of proceedings in lieu of removal. 8 U.S.C. 1229c(a)(1)&(b)(1); 8 C.F.R (DHS); 8 C.F.R (IJ). If an immigration judge grants voluntary departure, the judge shall also enter an alternate order of removal. 8 C.F.R (d). No statute or regulation addresses what constitutes proof of timely departure to avoid triggering an alternative order of removal. If an IJ grants voluntary departure at the conclusion of removal proceedings, the individual is required to post a voluntary departure bond. 8 U.S.C. 1229c(b)(3); 8 C.F.R (c)(3). If a person remains in the United States after the specified date for voluntary departure or fails to post the voluntary departure bond within five days, the alternative order of removal takes effect, 8 C.F.R (f), (c)(4), and the statute imposes a civil penalty and bars eligibility for various forms of relief for a period of ten years, 8 U.S.C. 1229c(d). 5

12 Individuals who timely post the voluntary departure bond and timely depart may elect to apply for cancellation of the bond upon submission of proof of the alien s timely departure C.F.R (c)(3)(v). Applying to cancel the bond is not obligatory and the failure to seek cancellation does not trigger the alternative removal order. Neither completing nor returning the departure verification form in effect at the time of Petitioner s 1999 departure (Form G-146) is mandatory, and the form does not put an individual on notice of any consequence of the failure complete or return it. 3 B. REINSTATEMENT OF REMOVAL Section 1231(a)(5) of Title 8 states: [I]f 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. The implementing regulations state that a person charged under 1231(a)(5) has no right to a hearing before an immigration judge. 8 C.F.R (a). The regulation simply requires low-level DHS employees to confirm the person s identity and the existence of a prior executed immigration order and subsequently illegal re-entry. 8 C.F.R (a). The regulations require a DHS officer to 3 Form G-146 is not available on ICE or CBP s websites. A version of Form G-146 is available at 6

13 determine the following: (1) Whether the alien has been subject to a prior order of removal. The immigration officer must obtain the prior order of exclusion, deportation, or removal relating to the alien. (2) The identity of the alien, i.e., whether the alien is in fact an alien who was previously removed, or who departed voluntarily while under an order of exclusion, deportation, or removal.... (3) Whether the alien unlawfully reentered the United States. In making this determination, the 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, which shall include a check of Service data systems available to the officer. 8 C.F.R (a). Although the regulations require DHS to determine whether the person has been subject to an order or is a person who departed voluntarily while under an order, neither the statute nor the regulations require the officer to explain that a timely departure under a voluntary departure order is not a departure under an order. The regulations also do not provide any opportunity to present proof of having timely departed. This stands in contrast to DHS obligation to verify a lawful entry claim, which contemplates consideration of all relevant evidence and checking the DHS entry database. 8 C.F.R (a)(3). Although DHS must provide written notice of its determination and an opportunity to make a statement contesting the determination, 8 C.F.R (b), DHS provides this notice and opportunity only after the officer files charges and without any 7

14 explanation of the differences between departure under a prior order and departure under a voluntary departure order. Upon issuance of a reinstatement order, the statute bars individuals subject to reinstatement from seeking almost all forms of relief, including cancellation of removal, adjustment of status or asylum. See 8 U.S.C. 1231(a)(5). DHS may execute the order immediately, without waiting for the expiration of the thirty-day period to file a petition for review under 8 U.S.C. 1252(b)(1). IV. ARGUMENT A. THE COURT HAS JURISDICTION TO REVIEW THE DENIAL OF PETITIONER S MOTION TO REOPEN THE REINSTATEMENT ORDER. This Court has jurisdiction under 8 U.S.C. 1252(a) to review ICE s denial of Petitioner s regulatory motion to reopen and rescind the reinstatement order. The regulations at 8 C.F.R authorize the filing of a motion to reopen any decision issued by the Department of Homeland Security. Entitled Reopening or Reconsideration, Section unequivocally states in broad, general language that: Except where the Board [of Immigration Appeals] has jurisdiction and as otherwise provided in 8 CFR parts 3, 210, 242 and 245a, when the affected party files a motion, the official having jurisdiction may, for proper cause shown, reopen the proceeding or reconsider the prior decision. Motions to reopen or reconsider are not applicable to proceedings described in 274a.9 of this chapter. 8

15 8 C.F.R (a)(1)(i) Section of 8 C.F.R. Confers Authority to Reopen DHS- Issued Removal Orders, Including Reinstatement Orders. The regulations contemplate that DHS has the authority to adjudicate a motion to reopen a reinstatement order, as did ICE Field Office Director Ricardo A. Wong when he issued a decision denying the motion to reopen. AR at 1-2. Under its plain language, 8 C.F.R contains a general grant of authority over motions to reopen to the DHS official having jurisdiction over a matter raised by an affected party. In this instance, the affected party is the noncitizen subject to an erroneous reinstatement determination. Section s language expressly excludes matters that fall outside its general grant of authority, but reinstatement is not among these exclusions. 5 The First Circuit Court of Appeals already has recognized that the filing a motion to reopen (or motion to reconsider) is the proper mechanism for presenting 4 The regulation further requires that such motions must be filed within 30 days of the decision that the motion seeks to reopen unless the movant can demonstrated that the delay was reasonable and was beyond [his] control. 8 C.F.R (a)(1)(i). Petitioner s motion was timely filed. ICE issued the reinstatement order on July 30, 2014 (AR 196), and Petitioner filed the motion on August 5, 2014 (AR 1). Petitioner thereafter supplemented the timely filed motion on October 23, 2014 (AR 75) and October 26, 2014 (AR 189). 5 Specifically, 8 C.F.R (a)(1)(i) excludes matters where the Board of Immigration Appeals has jurisdiction (such as general removal proceedings), where the Executive Office for Immigration Review has jurisdiction (8 C.F.R. 3), matters related to adjustments of status (8 C.F.R. 210, 245a), and matters related to enforcement proceedings of employer verification requirements (8 C.F.R. 274a.9). 9

16 claims realized after issuance of a reinstatement order. Ponta-Garca v. Ashcroft, 386 F.3d 341, 343 (1st Cir. 2004). In that case, the petitioner challenged a reinstatement order, claiming that he did not depart under a deportation order and that he reentered the country legally. Id. The Court found that a post-order letter from counsel raising these claims could not be viewed as invoking the reconsideration mechanism set forth in [8 C.F.R.] section 241.8(b); it can only be seen as a separate motion to reconsider or to reopen, and, thus, unconnected to the cited regulation. Id. The Court further noted: Should the eventual disposition of that motion not be in the petitioner s favor, he may, of course, file a separate petition for review with respect thereto. Id. at n.1. Thus, as the First Circuit already has recognized, Section s reopening procedures are available to petitioners subject to reinstatement and the courts of appeals may review any DHS denial of a motion to reopen. 6 6 To the extent that the Tenth Circuit in Aguilar-Aguilar v. Napolitano, 700 F.3d 1238 (10th Cir. 2012) suggested that of 8 C.F.R is limited to benefit request denials, that suggestion in addition to being dicta and not binding on this Court runs contrary to basic principles of statutory construction. Section grants broad authority to adjudicate motions to reopen beyond benefit request denials under 8 C.F.R If DHS (or its predecessor agency the Immigration and Naturalization Service) meant for Section only to apply to motions to reopen benefit denials, there would be no need for the regulation to expressly exclude certain other regulations from its reach, see n. 5, supra. Such a reading would render the exclusions meaningless. See Solis v. Summit Contrs., Inc., 558 F.3d 815, (8th Cir. 2009) ( We also should avoid a [regulatory] construction that would render another part of the same [regulation] superfluous ) (citation omitted). Moreover, any lingering ambiguities in the deportation 10

17 The ability to seek reopening in the reinstatement context is especially critical because ICE can and does execute reinstatement orders immediately upon issuance and individuals subject to 1231(a)(5) operate within a truncated process. Unlike other types of orders, there is no window of time that an individual has to respond to the reinstatement charges. See III., supra. 7 Moreover, individuals subject to reinstatement are in DHS custody during the pendency of the determination. 8 C.F.R This detention makes their situation even more difficult; curtailing their ability rebut the charges against them, as their detention prohibits them from gathering and presenting evidence, understanding their rights, or researching arguments. See Moncrieffe v. Holder, 133 S. Ct. 1678, 1690 (2013) (recognizing limited ability detainees have to collect evidence). They also have limited access to legal resources and severe restrictions placed on their ability to locate and communicate with counsel or communicate with family members or friends who could help them prepare their cases. Mark Noferi, Cascading Constitutional Deprivation, 18 Mich. J. Race & L. 63, statutes must be construed in favor of the alien. INS v. St. Cyr, 533 U.S. 289, 320 (2001). Thus, Section should be read in favor of finding that Section confers authority to reopen DHS-issued orders. 7 Compare the absence of any response window in reinstatement proceedings with the statutory right afforded in removal proceedings before an IJ of an initial, automatic ten-day hearing continuance after service of the charges to secure counsel. See 8 U.S.C. 1229(b)(1); see also 8 U.S.C. 1228(b)(3) (providing automatic stay of deportation for 14 days to seek judicial review); 8 C.F.R (b)(4)(ii) (providing noncitizen with at least 10 calendar days after service of DHS notice of intent to order removal under 8 U.S.C. 1228(b)). 11

18 (2012). 8 Without time to gather evidence, obtain counsel, and access to basic research tools, and without an understanding of the complexities of immigration law, individuals subject to reinstatement often lack the capacity to develop an appropriate legal defense during the reinstatement process. In light of these practical realities, reopening under Section is imperative to ensure a proper and lawful disposition of reinstatement proceedings. Dada, 554 U.S. at As this Case Illustrates, DHS Acknowledges the Availability of Reopening DHS-Issued Orders under Section DHS exercises its authority to grant or deny motions to reopen removal orders it issues. As illustrated here, although Petitioner was forced to file a mandamus action to compel ICE to act on his motion, throughout the course of mandamus proceedings, the government did not contest its authority to adjudicate the motion. Perez-Garcia v. Winkowski et al., No. 4:14-cv JAR (E.D. Mo., filed Dec. 5, 2014), ECF #1. Before the government had to answer the complaint, 8 Individuals without legal representation enter removal proceedings at a disadvantage. They must navigate an extraordinarily complex area of law and face off against trained DHS officers arguing for their deportation. Removal proceedings almost always involve legal terminology unfamiliar to a layperson. According to one study, individuals in removal proceedings with attorneys were 500% more likely to be permitted to remain in the U.S. than those without legal representation. See New York Immigrant Representation Study, Accessing Justice II: A Model for Providing Counsel to New York Immigrants in Removal Proceedings 1 (2012) (analyzing data from the New York immigration courts), 12

19 ICE adjudicated the motion and, thereafter, the government moved to dismiss the case as moot. Id., ECF #13. DHS, through its component agencies, also have granted motions to reopen expedited removal orders and administrative removal orders under 8 U.S.C. 1225(b) and 1228(b), respectively. 9 Relatedly, in Escoto-Castillo v. Holder, this Court reviewed an ICE-issued removal order under 8 U.S.C. 1228(b). 658 F.3d 864, 866 (8th Cir. 2011). The government argued that the petitioner failed to exhaust administrative remedies as required by 8 U.S.C. 1252(d), arguing, in part, that: Further, Escoto could have, but did not, move to reopen his proceedings, upon seeking collateral state court relief. See 8 C.F.R ; Evers v. Mukasey, 288 F. App x 441 (9th Cir. 2008) (finding alien subject to expedited removal may move to reopen). Brief for Respondent at *7, Case No , Escoto-Castillo v. Holder, 2011 WL (2011). This Court agreed, stating: As the government notes, when the state court issued the amended order, Escoto-Castillo could have filed a timely motion to reopen the removal proceedings. See 8 C.F.R (a). 9 See, e.g., Exhibit A containing decisions granting motions to reopen filed pursuant to 8 C.F.R and vacating expedited removal orders issued under 8 U.S.C. 1225(b). (The motions are on file with the author). More recently, in April 2015, DHS vacated an ICE-issued order under 8 U.S.C. 1228(b) after counsel filed a motion to reopen filed under 8 C.F.R See National Immigrant Justice Center, Malu v. Attorney General; available at (last visited Aug. 15, 2014). 13

20 Id. Although amicus respectfully disagrees with the Escoto-Castillo Court s conclusion, 10 the fact remains that the government represented to this Court, and this Court agreed, that this exact regulation 8 C.F.R confers authority to reopen DHS-issued removal orders. Similarly, in Evers v. Mukasey, the petitioner also challenged an order under 8 U.S.C. 1228(b), arguing that there was no mechanism available to him to seek to reopen the order to apply for withholding of removal or protection under the Convention Against Torture due to changed country conditions. Evers, 288 F. App x 441, 442, 2008 WL , *1 (9th Cir. 2008). In response, the government argued: [a]lthough Evers had the right to ask for reopening of his case under 8 C.F.R (a)(1)(i), he failed to do so. According to 8 C.F.R (a)(1)(i), an affected party can, for proper cause, file a motion to reopen proceedings before the Department [of Homeland Security]. Section 103.5(a)(1)(ii), in turn, confers jurisdiction on the official who made the latest decision in the proceeding unless the affected party moves to a new jurisdiction. Read together, sections 103.5(a)(i) and (ii) establish that the Assistant Special Agent who issued the Removal Order had authority and discretion to reopen the proceeding or reconsider the prior decision upon Evers motion. Brief for Respondent at *8-9, Case No , Evers v. Mukasey, 2008 WL (9th Cir. 2008) (emphasis added). The Ninth Circuit subsequently agreed with the government, concluding that [p]ursuant to 8 C.F.R (a)(1)(i), 10 Amicus believes that 1228(b) does not contains any meaningful exhaustion mechanism for purposes of 8 U.S.C. 1252(d). 14

21 Evers could have filed a motion to reopen proceedings as an affected party after the DHS s decision, but did not do so. Evers, 288 Fed. App x at 441, 2008 WL at *1. In sum, this case and the aforementioned cases, illustrate that both DHS and the courts of appeals rely on the availability of reopening DHS-issued removal orders under Section Congress Provided for Judicial Review over Motions to Reopen DHS-Issued Orders in 8 U.S.C. 1252(a) and (b)(6). Sections 1252(a) and (b)(6) of Title 8 provide for judicial review over the denial of Petitioner s motion. Section 1252(b)(6) mandates consolidated judicial review of final removal orders with review of motions to reopen. It plainly provides: (6) Consolidation with review of motions to reopen or reconsider When a petitioner seeks review of an order under this section, any review sought of a motion to reopen or reconsider the order shall be consolidated with the review of the order. Thus, as here, the statute requires consolidation of any review sought of a motion to reopen whenever a petition for review of the underlying order is pending with the Court. See Petitioner s Motion to Consolidate Cases (filed in Case No ), dated February 10, 2015; and Court Order, dated February 8, 2014 (consolidating Case Nos and ). The statute places no limitation on the types of motions to reopen or reconsider removal orders that are reviewable 15

22 by this Court. As this Court already has held, reinstatement orders are reviewable under 8 U.S.C. 1252(a). See Briseno-Sanchez v. Heinauer, 319 F.3d 324, 326 (8th Cir. 2003) ( We have jurisdiction to review an INS order to reinstate a prior deportation order pursuant to 242 of the INA, 8 U.S.C (2000) ); Lopez v. Heinauer, 332 F.3d 507, (8th Cir. 2003) (same). 11 Accordingly, the denial of motions to reopen reinstatement orders similarly are reviewable under 1252(a). Cheng Fan Kwok v. Immigration & Naturalization Serv., 392 U.S. 206, 217 (1968) (finding review over denials of regulatory motions proper under 8 U.S.C. 1105a(a), even where the review is separate from review of the deportation order); Kucana v. Holder, 558 U.S. 233, 253 (2010) ( Action on motions to reopen, made discretionary by the Attorney General only, therefore remain subject to judicial review ); Jalloh v. Orders of the Bd. of Immigration Appeals, 423 F.3d 894, 895 (8th Cir. 2005) ( Implicit in the grant of authority to review a final BIA order is the authority to review an order denying a motion to reopen the final order ) (citation omitted). 11 See also Arevalo v. Ashcroft, 344 F.3d 1, 9 (1st Cir. 2003); Garcia-Villeda v. Mukasey, 531 F.3d 141, 144 (2d Cir. 2008); Avila-Macias v. Ashcroft, 328 F.3d 108, 110 (3d Cir. 2003); Velasquez-Gabriel v. Crocetti, 263 F.3d 102, 105 (4th Cir. 2001); Ojeda-Terrazas v. Ashcroft, 290 F.3d 292, 295 (5th Cir. 2002); Warner v. Ashcroft, 381 F.3d 534, 536 (6th Cir. 2004); Gomez-Chavez v. INS, 308 F.3d 796, 800 (7th Cir. 2002); Chay Ixcot v. Holder, 646 F.3d 1202, 1206 (9th Cir. 2011); Duran-Hernandez v. Ashcroft, 348 F.3d 1158, 1162 n.3 (10th Cir. 2003); Sarmiento-Cisneros v. Ashcroft, 381 F.3d 1277, 1278 (11th Cir. 2004). 16

23 In sum, the denial of a regulatory motion to reopen a reinstatement order is a final order of removal reviewable under 8 U.S.C. 1252(a) Exercising Jurisdiction is Consistent with the Presumption in Favor of Judicial Review. Exercising jurisdiction over denials of motions to reopen reinstatement orders also is consistent with the presumption favoring interpretations of statutes [to] allow judicial review of administrative action. Kucana, 558 U.S. at 237 (citation omitted); McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 498 (1991) (relying on the strong presumption in favor of judicial review of administrative action to find jurisdiction over challenges to immigration procedures); INS v. St. Cyr, 533 U.S. 289, 298 & n.9 (2001) (applying the strong presumption in favor of judicial review of administrative action ). In addition, the Supreme Court has cautioned against placing in executive hands authority to remove cases from the Judiciary s domain, absent a clear 12 That the motion is creature of regulation, not statute, is irrelevant. Prior to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No , 110 Stat (Sept. 30, 1996), there was no statutory right to file a motion to reopen, only a regulatory right. 8 C.F.R and (1995); 8 C.F.R. 3.8(a) (1979); Immigration & Naturalization Serv. v. Jong Ha Wang, 450 U.S. 139, (1981) ( [t]he Act itself does not expressly provide for a motion to reopen, but regulations promulgated under the Act allow such a procedure. ). Nevertheless, denials of a motion to reopen were reviewable in the courts of appeals under former 8 U.S.C. 1105a(a) (1995). See Cheng Fan Kwok, 392 U.S. 206, 216 (1968); Giova v. Rosenberg, 379 U.S. 18 (1964) (per curiam); Aiyadurai v. INS, 683 F.2d 1195, 1199 (8th Cir. 1982). 17

24 statement from Congress. Kucana, 558 U.S. at 237; Reyes Mata v. Lynch, 135 S. Ct. 2150, 2152 (2015) (rebuking the Fifth Circuit s practice of recharacterizing appeals... as challenges to the Board s sua sponte decisions and then declining to exercise jurisdiction ; stating the court may not wrap such a merits decision in jurisdictional garb ). There is no evidence that Congress intended, let alone clearly intended, to preclude review over denials of motions to reopen DHS-issued orders. As such, the presumption in favor of judicial review of agency action applies. 5. Tapia-Lemos is Neither Binding Nor Applicable. The Seventh Circuit s decision in Tapia-Lemos v. Holder, 696 F.3d 687, 690 (7th Cir. 2012) is not binding on this Court. In that case, the court found that it lacked jurisdiction to review the 2010 denial of a motion to reopen a reinstatement order. Id. The petitioner initially filed a late petition for review of the reinstatement order and ICE s denial of his motion to stay deportation. Id. The court dismissed the petition as untimely and concluded that it lacked jurisdiction over the agency s stay denial. Id. at Thereafter, the petitioner simply changed the caption on his previously filed motion to stay deportation and filed a motion to reopen, which ICE rejected as duplicative because the motion to reopen asked ICE not to execute the 1997 removal order [underlying the reinstatement order]. Id. at 689. Emphasis in the original. The court rejected the 18

25 petitioner s second petition for review of ICE s denial of reopening, finding that petitioner was again attempting to challenge the 1997 deportation order. Id. at 689. The court s decision in Tapia-Lemos is wrong and is factually distinguishable. Significantly, the court failed to conduct any jurisdictional analysis under 8 U.S.C. 1252(a) or 1252(b)(6) and failed to apply the presumption in favor of judicial review and rule of lenity. See IV.A.3-4, supra. Instead, the court construed 1231(a)(5) s bar to reopening the order underlying a reinstatement order as a jurisdictional bar, when it is not. Tapia-Lemos, 696 F.3d at This construction of 1231(a)(5) s reopening bar as jurisdictional conflicts with the plain language of the statute, which provides that when an individual is subject to reinstatement: the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed.... This language simply purports to bar reopening and review of the prior order; it does not bar reopening a reinstatement order. More importantly, however, this language does not speak to a court s subject matter jurisdiction, including its jurisdiction to review the denial of a motion to reopen a reinstatement order. In addition, procedural posture of Petitioner s case and the factual and legal basis of his claims stand in stark contrast to those in Tapia-Lemos. The motion to reopen filed by the petitioner in Tapia-Lemos sought to reopen the

26 deportation order, not the reinstatement order, and was filed longer after the 30 day time limit for reopening under 8 C.F.R Moreover, the court already had dismissed Tapia-Lemos petition for review of the reinstatement order as untimely and he raised no new claims. Here, Petitioner timely filed a motion to reopen the 2014 reinstatement order and presented new evidence. After ICE denied the motion, Petitioner timely filed a petition for review of the denial, moved to consolidated review of the denial with review of the reinstatement order, and each petition raises distinct claims. For all of these reasons, Tapia-Lemos is not relevant here. * * * * In sum, review of the denial of a motion to reopen a reinstatement order is proper under 8 U.S.C. 1252(a). B. THE COURT SHOULD VACATE THE REINSTATEMENT ORDER AND REMAND FOR ICE TO RECONSIDER ITS CHARGING DECISION BASED ON RELAVANT FACTORS. Notwithstanding 1231(a)(5) s language that a person shall be removed under the prior order at any time after the reentry, reinstatement is not automatic. Matter of E-R-M & L-R-M, 25 I&N Dec. 520, 523 (BIA 2011) (finding no reason to suppose that the broad discretion given to the Executive Branch regarding charging decisions in the criminal context does not also apply to charging 20

27 decisions by the Executive Branch, that is, the DHS, in the immigration context. ). 13 ICE officers have discretion to determine whether to charge a noncitizen with removability under 8 U.S.C. 1231(a)(5) or with removability under 8 U.S.C or 1227 (i.e., regular removal proceedings under 8 U.S.C. 1229a). See Villa-Anguiano v. Holder, 727 F.3d 873, 878 (9th Cir. 2013) ( Particularly when there is any question about whether the requirements of 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. ); Matter of G-N-C-, 22 I&N Dec. 281, 288 (BIA 1998) (holding that immigration judge not obligated to terminate removal proceedings upon a DHS motion to terminate to pursue reinstatement). This discretionary decision has life changing consequences. On one hand, if the officer elects to places the individual in reinstatement proceedings, the noncitizen is immediately removable, the prior order of removal... is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any 13 For a detailed discussion addressing why shall does not means agencies lack discretion in the immigration context, see Kate M. Manual and Todd Garvey, Legislative Attorneys, Congressional Research Service, Prosecutorial Discretion in Immigration Enforcement: Legal Issues (Dec. 27, 2013) at 21-22, available at 21

28 relief under [the Immigration and Nationality Act] U.S.C. 1231(a)(5). On the other hand, if the officer elects to place the individual in removal proceedings, the noncitizen receives a full hearing before an impartial immigration judge in which he may apply for any relief for which he is eligible, and an administrative appeal to the Board of Immigration Appeals. 8 U.S.C. 1229a (removal proceedings); 8 U.S.C. 1101(a)(47)(B) & 1229a(c)(5) (appeal to the BIA). In Judulang v. Holder, 132 S. Ct. 476 (2011), the Supreme Court reviewed, under the Administrative Procedures Act, a BIA ruling that categorically prevented certain noncitizens from qualifying for relief under former 8 U.S.C. 1182(c). Applying the test under 706(2)(A) of Title 5, the Court unanimously rejected the rule as arbitrary and capricious. Id. Further, Judulang instructs the agency to consider whether its decisions are tied to the purposes of the immigration laws or the appropriate operation of the immigration system. Id. at 485. The Court cautioned that eligibility for relief cannot hang on arbitrary charging decisions made by individual immigration officers. Id. at 486. As the Court explained, [a]n alien appearing before one official may suffer deportation; an identically situated alien appearing before another may gain the right to stay in this country. Id. The Court recognized that a policy that turns on the fortuity of an individual officer s decision is fundamentally flawed. Id. Citing Judge Learned Hand s admonition 22

29 that deportation decisions cannot be made into a sport of chance, id. at 487, the Court criticized a decision denying lawful permanent residents eligibility for a waiver of deportation because the decision failed to consider how the proposed construction of the statute at issue related to germane factors such as an individual s worth[iness], prior offense, or other attributes and circumstances. Id. at 485. Similarly, here, this Court should reject ICE s policy of issuing reinstatement orders without recognizing, much less considering, factors the Judulang Court identified as germane. 14 Petitioner is a husband to a U.S. citizen wife and a father to four U.S. citizen children. He complied with his prior order of voluntary departure in See AR 21, 23, , , Petitioner s Opening Brief at II - IV; and Petitioner s Request for Judicial Notice, filed Aug. 10, Petitioner has no criminal convictions. A.R His prior offense[s] (id. at 485) are returning to the United States in 1999 to marry his wife, with whom he has been married for over 17 years, and in 2000 to join his family, AR 25, 30. Petitioner not only merits the ability to seek a waiver (id. at 485) but likely 14 Amicus is not arguing that ICE failed to consider some factors and not others, which this Circuit construes as a challenge to ICE s discretionary conclusion for which the Court lacks jurisdiction. See generally Salas-Caballero v. Lynch, 786 F.3d 1077, 1078 (8th Cir. 2015) (listing cases). Rather, amicus submits that ICE failed to consider any of the identified factors relevant to the exercise of its discretion. 23

30 would have been granted such relief. 15 If placed in removal proceedings, Petitioner would be eligible for cancellation of removal because he can establish: over 10 years of continuous presence in the United States, good moral character, the absence of any conviction, and that removal would result in exceptional and extremely unusual hardship to his U.S. citizen wife and four U.S. children. 8 U.S.C. 1229b(1). See AR ( Jose is the one who takes care of our children so I can work to pay our bills... Jose makes the wood for winter heat that keeps us warm...jose makes the hay from our field to feed our animals. He is the one who cooks, cleans, and anything else that may need to be done What our family needs is Jose. He is the glue that keeps us together ). The equities in his case make it likely that an IJ would have granted Petitioner cancellation of removal. The administrative record evidences that ICE failed to exercise discretion by ignoring all of the germane factors the Judulang Court identified. ICE issued, the reinstatement order against Petitioner without considering any factors, at all. AR See Villa-Anguiano, 727 F.3d at 881 ( the agency must consider all 15 Favorable considerations that support a grant of cancellation include: family ties within the United States; length of residence, particularly if it began at a young age; hardship to the person and his family if deportation occurs; employment history; proof of rehabilitation if a criminal record exists; and other evidence of good character. Matter of C.V.T., 22 I&N Dec. 7, (BIA 1998); see also Matter of Buscemi, 19 I&N Dec. 628, 634 (BIA 1988). Adverse factors may include the nature and underlying circumstances of the basis for removal, additional immigration law violations, the nature, recency, and seriousness of any criminal record, and other evidence of bad character. Matter of C.V.T., 22 I&N Dec. at

31 favorable and unfavorable factors relevant to the exercise of its discretion; failure to do so constitutes an abuse of discretion. ); see also Carrete-Michel v. Immigration & Naturalization Service, 749 F.2d 490, 493 (8th Cir. 1984) (finding BIA abused its discretion by improperly characterizing and minimizing petitioner s economic hardship claim and giving inadequate consideration to his personal and emotional hardship claim). The Record of Sworn Statement demonstrates that ICE inquired only as to the elements of the reinstatement order (alienage, prior deportation, manner of last entry) and eligibility for asylum. AR ICE did not inquire into whether Petitioner had U.S. citizen or lawful permanent resident spouse or children that would enable him to qualify for cancellation of removal. Although ICE was aware that he had a wife, ICE did not acknowledge anywhere in its documentation her status as a U.S. citizen. AR 201 ( He was given a 3 minute phone call to his wife Amanda Perez ). The accompanying Record of Deportable/Inadmissible Alien (Form I-213) further evidences the absence of any inquiry into any potentially positive discretionary factors. AR 199. Curiously, the I-213 states that: The subjects [sic] A file has since been retired. Here, DHS is responsible for the appropriate operation of the immigration system and, accordingly, sets priorities for enforcement removal activity. In July 2014, when ICE issued the reinstatement order against Petitioner, DHS had 25

32 prioritized civil enforcement priorities into three tiers 16 and provided detailed guidance to the field both about the priorities and on how to the exercise of prosecutorial discretion to ensure that the agency s immigration resources are focused on the agency s enforcement priorities. 17 Even under ICE s erroneous belief that Petitioner had reentered after a previous removal order, however, Petitioner was the lowest of four sub-prioritizes within that category of persons because he had not been convicted of a crime. Morton Prioritization Memorandum at 3. Petitioner qualified for consideration of prosecutorial discretion as an immediate family member of a U.S. citizen spouse and four U.S. children. Id. at 4 ( Particular care should be given when dealing with lawful permanent residents, juveniles, and the immediate family members of U.S. citizens. ). Therefore, ICE should have considered the factors identified in the agency s detailed policy guidance including length of presence in the United States, the existence of a 16 See Memorandum for All ICE Employees, from John Morton, Director, Department of Homeland Security, Re: Civil Immigration Enforcement: Priorities for the Apprehension, Detention and Removal of Aliens (Mar. 2, 2011) (Morton Prioritization Memorandum) available at 17 See Memorandum for All Field Officers Directors, All Special Agents in Charge, All Chief Counsel, Re: Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for Apprehension, Detention and Removal of Aliens (June 17, 2011) (Prosecutorial Discretion Factors and Guidance Memorandum) available at 26

33 U.S. citizen spouse or child, lack of criminal history, ties and contributions to the community, the likelihood of relief from removal as a relative of a U.S. citizen. See Prosecutorial Discretion Factors and Guidance Memorandum at 4. Significantly, however, ICE entirely failed to inquire about, let alone consider, any favorable factors in Petitioner s case. Had ICE considered the appropriate operations of the immigration system i.e., these factors, there would be some evidence in the record that ICE inquired. There is none. AR , In sum, amicus submits that had ICE considered any of the germane factors identified by the Judulang Court or the appropriate operation of the immigration system, ICE would have placed Petitioner in removal proceedings where he could apply for relief from removal. The agency s failure to consider any factors germane to the exercise of its discretion was arbitrary and capricious and contrary to DHS policy. IV. CONCLUSION The Court either should (1) exercise jurisdiction over ICE s denial of Petitioner s motion to reopen and vacate the denial; or (2) vacate the reinstatement order and remand for ICE to reconsider its charging decision based on relevant factors. The Court also should order ICE to facilitate Petitioner s return to the 18 The only inquiry ICE conducted was a fingerprint record check through the Federal Bureau of Investigation s database. Form I-213 indicated that Petitioner had no criminal history. AR