Myrna Ochoa-Carrillo v. John Ashcroft ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-2038
___________
Myrna Ochoa-Carrillo, *
*
Petitioner, *
* Petition for Review of an
v. * Order of the Department
* of Homeland Security.
Alberto Gonzales, Attorney General *
of the United States of America *
*
Respondent. *
___________
Submitted: October 12, 2005
Filed: February 15, 2006
___________
Before LOKEN, Chief Judge, GRUENDER and BENTON, Circuit Judges.
___________
LOKEN, Chief Judge.
Myrna Ochoa-Carrillo petitions for judicial review of an order of the Bureau
of Immigration and Customs Enforcement (BICE) reinstating a prior removal order.1
The order was entered pursuant to § 241(a)(5) of the Immigration and Nationality Act,
1
The Homeland Security Act of 2002 abolished the Immigration and
Naturalization Service and transferred the authority to enter the order at issue to the
Department of Homeland Security, which placed that authority in BICE. Thus,
Attorney General Gonzales may not be the proper respondent, but the government has
not raised this issue so we decline to consider it.
8 U.S.C. § 1231(a)(5),2 and its implementing regulation, 8 C.F.R. § 241.8. Ochoa-
Carrillo argues that BICE erred in determining that she is the alien named in the prior
order and that the regulation violates the statute and her right to procedural due
process. We have jurisdiction to review an order reinstating a prior order of removal.
See 8 U.S.C. § 1252(a); Briones-Sanchez v. Heinauer, 319 F.3d 324, 326 (8th Cir.
2003). Our review is limited to the agency’s certified administrative record. See 8
U.S.C. § 1252(b)(4)(A); Grass v. Gonzales, 418 F.3d 876, 879 (8th Cir. 2005). We
conclude that the agency’s identity determination is well supported in the
administrative record. We reject Ochoa-Carrillo’s statutory argument and conclude
that she has failed to establish the prejudice necessary to support a procedural due
process challenge. Accordingly, we deny the petition for review.
I. Background Facts.
In November 2001, Ochoa-Carrillo married an American citizen in Kansas
City, Missouri. She applied for an adjustment of status to lawful permanent resident
on INS Form I-485, representing that she had never been deported but had used a false
social security number to obtain work. Immigration officials submitted the
application, which included Ochoa-Carrillo’s fingerprints, to the FBI for a routine
criminal check. The FBI reported that the applicant’s fingerprints matched those of
an alien named Ivette Trevizo-Frias who made a false claim of U.S. citizenship and
was summarily removed under a removal order dated March 2, 1998.3 In March 2004,
2
The statute provides: “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.”
3
The record also contains a February 1993 exclusion order entered after Ochoa-
Carrillo entered the country by presenting a false resident alien identification card, and
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the INS denied the I-485 application on the ground that Ochoa-Carrillo “made a false
claim to United States citizenship on March 2, 1998, was subsequently removed from
the United States as a result of that claim, and no waiver of this ground of
inadmissibility is available.” See 8 U.S.C. § 1182(a)(6)(C)(ii).
Ochoa-Carrillo sought to renew her alien employment authorization in late
April, 2004. She was detained because of the I-485 denial. On April 26, immigration
officers in Kansas City served Ochoa-Carrillo and her attorney with a Notice of
Intent/Decision to Reinstate Prior Order (INS Form I-871). The Notice recited that
Ochoa-Carrillo was removable under 8 U.S.C. § 1231(a)(5) because she had illegally
reentered the United States after being removed pursuant to the March 2, 1998
removal order. Ochoa-Carrillo refused to sign the Acknowledgment and Response
section of the Notice, where she could have stated that she wished “to make a
statement contesting the determination.” BICE’s Acting Interim Resident Agent in
Charge then signed the Order at the bottom of the form, certifying that he “determined
that the above-named alien is subject to removal through reinstatement of the prior
order.” That determination and order are the subject of this petition for review.
The record reflects that BICE again submitted Ochoa-Carrillo’s fingerprints to
the FBI on April 27. The FBI responded that day, reporting that the fingerprints
submitted “are identical with” those of Trevizo-Frias. On April 29, Ochoa-Carrillo
filed this petition for review. She also filed a motion to reopen the February 1993
exclusion proceedings with the Department of Justice and petitions for a writ of
habeas corpus and for a stay of removal with the United States District Court for the
Western District of Missouri. The district court granted a stay of removal. The
habeas petition remains pending in that court (Case No. 04-4089-CV).
a Record of Deportation stating that she was apprehended and removed at a point of
entry on March 10, 1998.
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II. Discussion.
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996,
Pub. L. No. 104-208, 110 Stat. 3009-546 (1996), enacted significant changes to the
statutory reinstatement and removal procedure. See Alvarez-Portillo v. Ashcroft, 280
F.3d 858, 862-63 (8th Cir. 2002), cert. denied, 537 U.S. 1111(2003). The statute does
not prescribe the procedures to be followed in reinstating a prior removal order.
Responding to legislative history reflecting Congress’s intent to expedite the removal
of those who illegally reenter, the Attorney General promulgated regulations adopting
a summary reinstatement procedure. See 8 C.F.R. § 241.8; Lattab v. Ashcroft, 384
F.3d 8, 17-20 (1st Cir. 2004).4
4
As relevant here, the regulations provide:
§ 241.8 Reinstatement of removal orders.
(a) Applicability. An alien who illegally renters the United States after
having been removed . . . shall be removed from the United States by
reinstating the prior order. The alien has no right to a hearing before an
immigration judge in such circumstances. In establishing whether an alien is
subject to this section, the immigration officer shall determine the following:
(1) Whether the alien has been subject to a prior order of removal. . . .
(2) The identity of the alien, i.e., whether the alien is in fact an alien who
was previously removed . . . . In disputed cases, verification of identity shall be
accomplished by a comparison of fingerprints between those of the previously
. . . removed alien . . . and those of the subject alien. In the absence of
fingerprints in a disputed case the alien shall not be removed pursuant to this
paragraph.
(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
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A.
Ochoa-Carrillo first argues that the April 26, 2004 Notice of Reinstatement
erred in alleging that she is subject to a prior order of removal. She asserts that the
Notice was invalid because BICE did not ask the FBI for a fingerprint comparison
until April 27, the day after its adverse determination, whereas the regulation provides
that, in a disputed case, “verification of identity shall be accomplished by a
comparison of fingerprints” and the summary reinstatement procedure may not be
used “[i]n the absence of fingerprints,” 8 C.F.R. § 241.8(a)(2). This assertion is
legally unsound because the regulation does not state that the summary reinstatement
procedure may not be commenced absent fingerprint evidence. More importantly, the
assertion is factually wrong. The Notice was issued after the March 2004 denial of
Ochoa-Carrillo’s I-485 application, which in turn was based upon FBI fingerprint
comparisons in 2002 that reported a match with the prints of Trevizo-Frias. Thus,
BICE was fully justified in issuing a Notice of Reinstatement under§ 241.8.
Ochoa-Carrillo’s appeal brief then attempts to catalog all the mistakes that FBI
examiners might have made in comparing the fingerprints. Assuming this is a
challenge to the agency’s identity determination, rather than the Notice, there is no
record support for these speculative contentions. Ochoa-Carrillo was entitled to
contest identity. See 8 C.F.R. § 241.8(a)(2). The agency’s reliance on a prior removal
order identifying the removed alien by a different name raised an identity issue. But
immigration officer shall attempt to verify an alien’s claim, if any, that he or
she was lawfully admitted . . . .
(b) Notice. If an officer determines that an alien is subject to removal .
. . he or she shall provide the alien with written notice of his or her
determination [and] shall advise the alien that he or she may make a written or
oral statement contesting the determination. If the alien wishes to make such
a statement, the officer shall allow the alien to do so and shall consider whether
the alien’s statement warrants reconsideration of the determination.
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when served with the Notice on April 26, Ochoa-Carrillo did not make a written
statement disputing the agency’s determination. She apparently raised the identity
issue orally because BICE submitted another fingerprint request to the FBI the next
day. The FBI promptly reported another match with the prints of Trevizo-Frias, a
report that gave the agency decision-maker no basis to reconsider his April 26 identity
determination, as 8 C.F.R. § 241.8(b) expressly permits.
Ochoa-Carrillo made no further record on the identity issue. Instead, she filed
an administrative motion to reopen the February 1993 exclusion proceedings on
grounds other than mistaken identity; a petition for review to this court, which may
only consider the administrative record; and a habeas petition to the district court,
which had no jurisdiction because judicial review lies exclusively in the court of
appeals.5 On this record, we must reject any challenge to the fingerprint evidence
relied upon by BICE in making its identity determination. Thus, substantial evidence
on the administrative record as a whole supports BICE’s decision to reinstate the
March 2, 1998 removal order and remove Ochoa-Carrillo as an illegal reentrant.
B.
Ochoa-Carrillo argues that BICE violated the Immigration and Nationality Act
by entering the reinstatement order without the hearing before an immigration judge
that must precede entry of an initial removal order. See 8 U.S.C. § 1229a(a)(1) and
(b)(4). These hearing provisions apply broadly to removal proceedings: “Unless
otherwise specified in this chapter, a proceeding under this section shall be the sole
5
See 8 U.S.C. § 1252(a)(5); Lopez v. Heinauer, 332 F.3d 507, 512 (8th Cir.
2003). Our decision in Lopez deprived the district court of jurisdiction at the time
Ochoa-Carrillo filed her habeas petition. We have now afforded the judicial review
to which she is entitled. Accordingly, the Western District of Missouri should now
transfer the case to this court under the REAL ID Act, Pub. L. 109-13, Div. B, Title
I, § 106(c) (2005).
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and exclusive procedure for determining whether an alien may be . . . removed from
the United States.” 8 U.S.C. § 1229a(a)(3). Because § 1231(a)(5) does not prescribe
different procedures to be employed in reinstating a removal order, Ochoa-Carrillo
contends that BICE must therefore comply with the § 1229a procedures. The
argument is based upon the panel decision in Morales-Izquierdo v. Ashcroft, 388 F.3d
1299 (9th Cir. 2004). That decision is now being reviewed by the Ninth Circuit en
banc, Morales-Izquierdo v. Gonzales, 423 F.3d 1118 (9th Cir. 2005).
In Alvarez-Portillo, 280 F.3d at 866, in considering whether 8 U.S.C.
§ 1231(a)(5) had an impermissible retroactive effect, we commented:
The INS has construed [the statute] as mandating a more streamlined
reinstatement procedure. Therefore, its implementing regulation provides the
alien with notice and an opportunity to be heard but authorizes an immigration
officer to make the required fact findings and enter a reinstatement order in
summary fashion. 8 C.F.R. § 241.8. This is clearly a permissible interpretation
of the statute that is entitled to substantial judicial deference.
Since that decision, we have upheld at least three reinstatement orders without
reconsidering that comment. See Briones-Sanchez, 319 F.3d at 327; Lopez, 332 F.3d
at 512; Flores v. Ashcroft, 354 F.3d 727, 730 (8th Cir. 2003). In Lattab, 384 F.3d at
17-20, the First Circuit considered the question in depth, concluding that the statute
is ambiguous and agreeing with Alvarez-Portillo that 8 C.F.R. § 241.8 must be upheld
as a reasonable interpretation of the statute. In United States v. Tilley, 144 Fed. Appx.
536, 540 (6th Cir. 2005), the Sixth Circuit also upheld the regulation, finding no
ambiguity because imposing the procedural requirements of 8 U.S.C. § 1229a would
be inconsistent with the requirements of § 1231(a)(5). By either analysis, we conclude
the answer is clear -- 8 C.F.R. § 241.8 is a valid interpretation of the Immigration and
Nationality Act.
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C.
Ochoa-Carrillo further argues that the summary reinstatement procedures
mandated by 8 C.F.R. § 241.8 violate the due process rights of aliens who wish to
contest reinstatement determinations. Although resident aliens have a right to due
process in immigration proceedings, “[t]he constitutional sufficiency of procedures
provided in any situation . . . varies with the circumstances.” Landon v. Plasencia,
459 U.S. 21, 34 (1982); see Mathews v. Eldridge, 424 U.S. 319 (1976). “[T]o succeed
on a due process claim, an alien must prove that he was actually prejudiced by the lack
of process afforded to him.” Briones-Sanchez, 319 F.3d at 327.
1. The statute provides that an alien shall be removed by reinstating a prior
removal order upon a showing that the alien was subject to a prior removal order and
illegally reentered the United States. We have previously observed that “the
streamlined notice and opportunity to be heard afforded illegal reentrants under §
241.8 seems quite appropriate when the only issues to be determined are those
establishing the agency’s right to proceed under [8 U.S.C. § 1231(a)(5)] -- the alien’s
identity, the existence of a prior removal order, and whether the alien has unlawfully
reentered.” Alvarez-Portillo, 280 F.3d at 867. In three cases, we rejected procedural
due process challenges to 8 C.F.R. § 241.8 because the alien did not contest these
findings and therefore failed to show prejudice. Flores, 354 F.3d at 730; Lopez, 332
F.3d at 512; Briones-Sanchez 319 F.3d at 327. Ochoa-Carrillo argues that this case
is distinguishable because she contested identity, one of the determinations the
immigration officer must make in entering a reinstatement order.
The regulation provides that, in disputed cases, “verification of identity shall
be accomplished by a comparison of fingerprints.” See § 241.8(a)(2). Fingerprint
identification often involves a comparison of latent prints, impressions taken from the
surface of an object such as a crime scene weapon, and inked prints, those obtained
when a person rolls inked fingertips on a piece of paper. Fingerprint identification
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involving latent prints has been contested in many cases. See Weinstein & Berger,
Weinstein’s Federal Evidence § 702.06 (2005). On the other hand, 8 C.F.R. § 241.8
prescribes a comparison of two sets of inked fingerprints taken by government
officials for immigration or other regulatory purposes. Inked prints are of higher
quality than latent prints, and comparisons of inked prints are more reliable. See
United States v. Mitchell, 365 F.3d 215, 243 (3rd Cir.), cert. denied, 543 U.S. 974
(2004) (“It is significantly easier to match one clean full-rolled [inked] print to another
than it is to match a somewhat distorted latent fragment to a full-rolled print.”). Thus,
it is reasonable for the agency to employ a summary procedure when its identity
determination is based upon the comparison of inked fingerprints in its records. Of
course, nothing in the regulation bars an alien from requesting copies of the agency’s
fingerprint evidence and subjecting that evidence to examination by an independent
expert. But in the absence of such a fact-based challenge, the due process argument
fails for lack of a showing of prejudice.
2. Ochoa-Carrillo argues that the summary reinstatement proceeding provides
no “meaningful opportunity” to review the alien’s files and respond. Here, Ochoa-
Carrillo, represented by counsel, was presented with a written Notice and given an
opportunity to make a written statement, which she declined. The regulations provide
that the alien may examine relevant records, see 8 C.F.R. §§ 103.2(b)(16)(i), 103.10,
1292.4(b). The entry of appearance form signed by Ochoa-Carrillo’s attorney noted
the “availability of records” for review. This contention is without merit.
3. Ochoa-Carrillo next argues that she lacked adequate opportunity to create
an adequate record for judicial review. Again, the record belies this claim. On April
26, she orally contested identity. The next day, BICE requested another FBI
fingerprint comparison. The FBI again reported that the fingerprints of Ochoa-
Carrillo and Trevizo-Frias matched. The record contains no written statement or
motion by Ochoa-Carrillo requesting additional process and explaining why it would
produce a different result. In other words, though given a meaningful opportunity to
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raise and contest the identity issue, Ochoa-Carrillo submitted nothing in the nature of
an offer of proof demonstrating that, with more process, she would prevail in the face
of the substantial identity evidence furnished to BICE by the FBI. This procedural
due process challenge fails because no prejudice has been shown.
4. Ochoa-Carrillo argues that the regulations fail to provide aliens with the
advice and assistance of counsel. She was represented by counsel at all relevant times.
No prejudice has been shown.
5. Ochoa-Carrillo argues that placing the reinstatement decision in the hands
of an immigration officer, rather than an immigration judge, results in unacceptably
biased decision-making. The Supreme Court long ago characterized this due process
argument as “without substance.” Marcello v. Bonds, 349 U.S. 302, 311 (1955);
accord Gomez-Chavez v. Perryman, 308 F.3d 796, 802 (7th Cir. 2002), cert. denied,
540 U.S. 811 (2003); United States v. Garcia-Martinez, 228 F.3d 956, 960-61 (9th Cir.
2000), cert. denied, 531 U.S. 1179 (2001); United States v. Benitez-Villafuerte, 186
F.3d 651, 659-60 (5th Cir. 1999), cert. denied, 528 U.S. 1097 (2000).
6. Finally, citing no relevant authority, Ochoa-Carrillo argues that § 241.8
violates due process because it fails to require that the alien be given notice of the
right to judicial review. Ochoa-Carrillo filed a timely petition for judicial review to
this court. Again, no prejudice has been shown.
We deny the petition for review.
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