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Miller v. Sessions

United States Court of Appeals, Ninth Circuit

May 8, 2018

Dorna Alicia Miller, Petitioner,
Jefferson B. Sessions III, Attorney General, Respondent.

          Argued and Submitted March 15, 2018 San Francisco, California

          On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A097-344-335

          Kari E. Hong (argued), Boston College Law School, Newton, Massachusetts, for Petitioner.

          Aimee J. Carmichael (argued), Trial Attorney; Mary Jane Candaux, Assistant Director; Office of Immigration Litigation, United States Department of Justice, Washington, D.C.; for Respondent.

          Before: Paul J. Watford and Michelle T. Friedland, Circuit Judges, and Jed S. Rakoff, [*] Senior District Judge.



         The panel granted Dorna Alicia Miller's petition for review of a decision of the Board of Immigration Appeals and remanded, holding that 8 U.S.C. § 1231(a)(5), which governs reinstatement of removal orders, does not deprive an immigration court of jurisdiction to resolve a motion to reopen a removal order issued in absentia, where the motion is based on a claim of lack of notice of the individual's removal hearing.

         The case required the panel to interpret the interplay between two provisions of the Immigration and Nationality Act. One provision, 8 U.S.C. § 1229a(b)(5), authorizes immigration judges to order non-citizens removed from the country in absentia under certain circumstances, but also provides a fail-safe mechanism: If the individual can show that she never received notice of the hearing, she may seek to rescind a removal order entered in absentia by filing a motion to reopen "at any time." § 1229a(b)(5)(C)(ii).

         The other provision at issue, 8 U.S.C. § 1231(a)(5), applies to non-citizens who are ordered removed, leave the United States while under the order of removal, and reenter the country illegally. In that scenario, the Department of Homeland Security may reinstate the prior removal order through a summary proceeding that does not involve a hearing before an immigration judge. The provision also states that when an order is reinstated, the prior removal order "is not subject to being reopened or reviewed."

         After Miller was ordered removed in absentia in 2004, she was apprehended attempting to reenter the United States, and the DHS reinstated her 2004 removal order. After expressing a fear of returning to El Salvador during her reinstatement proceedings, her case was referred to an immigration judge, who granted withholding of removal. Miller then filed a motion to reopen seeking to rescind her 2004 order so that she could seek asylum, which confers a broader set of rights than withholding of removal and is not available during reinstatement proceedings. Citing § 1231(a)(5), the immigration judge denied Miller's motion on the ground that he lacked jurisdiction to consider it, and the BIA affirmed.

         As a threshold matter, the panel held that it had jurisdiction to consider whether Miller could seek rescission based on lack of notice, rejecting the government's contention that Miller failed to exhaust the issue by not citing the correct subsection of § 1229a(b)(5)(C). The panel concluded that Miller had sufficiently exhausted the issue by repeatedly raising "lack of notice" in her brief to the BIA, and by referring to the statutory authority to seek reopening "at any time."

         The panel held that § 1231(a)(5) does not bar immigration judges from entertaining a motion to reopen an in absentia removal order under § 1229a(b)(5)(C)(ii). The panel acknowledged that the government's contrary interpretation of § 1231(a)(5) is not foreclosed by the text of the statute. However, the panel concluded that such a reading of the statute would raise potential due process concerns, at least in circumstances, like those present in this case, in which the non-citizen first learns of the prior removal order at the outset of the reinstatement proceeding. Specifically, the panel noted that the court has held that due process challenges to the underlying removal order, even those predicated on lack of notice, generally may not be raised in the reinstatement proceeding itself. Thus, the panel concluded that, if the court adopted the government's reading of § 1231(a)(5), a non-citizen whose due process rights were violated in the earlier removal proceedings due to lack of notice could have the resulting removal order reinstated against her without ever being afforded an opportunity to challenge its legality.

         In sum, the panel held that, while an individual placed in reinstatement proceedings under § 1231(a)(5) cannot as a general rule challenge the validity of the prior removal order in the reinstatement proceeding itself, she retains the right, conferred by § 1229a(b)(5)(C)(ii), to seek rescission of a removal order entered i ...

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