United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 05-2977

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Nahum Gonzalez,

Petitioner,

v.

Michael Chertoff, Secretary, U.S.

Department of Homeland

Security,

Respondent.

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Petition for Review of an 

Order of the Department 

of Homeland Security.

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Submitted: June 14, 2006

 Filed: July 20, 2006

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Before SMITH, HEANEY and GRUENDER, Circuit Judges. 

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GRUENDER, Circuit Judge.

 Nahum Gonzalez (“Gonzalez”) petitions for review of a final administrative

order of removal issued by the Department of Homeland Security (“DHS”). Gonzalez

argues that the application of expedited removal proceedings was impermissibly

retroactive and violated his due process and equal protection rights. For the reasons

discussed below, we deny the petition for review.
1

Section 1228(b)(4) provides as follows:

Proceedings before the Attorney General under this subsection shall be

in accordance with such regulations as the Attorney General shall

prescribe. The Attorney General shall provide that—

 (A) the alien is given reasonable notice of the charges and of the

opportunity described in subparagraph (C);

 (B) the alien shall have the privilege of being represented (at no

expense to the government) by such counsel, authorized to practice in

such proceedings, as the alien shall choose;

 (C) the alien has a reasonable opportunity to inspect the evidence and

rebut the charges;

 (D) a determination is made for the record that the individual upon

whom the notice for the proceeding under this section is served (either

in person or by mail) is, in fact, the alien named in such notice;

 (E) a record is maintained for judicial review; and

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I. BACKGROUND

Gonzalez, a native and citizen of Mexico, pled guilty to second degree burglary

in California state court in 1988 and was sentenced to two years’ imprisonment.

Gonzalez was subsequently deported to Mexico on October 7, 1991, but unlawfully

reentered the United States later that day. He married a United States citizen in 1993.

On June 17, 2005, Gonzalez was identified as a deportable alien by an

immigration enforcement agent in Bloomington, Minnesota. Presuming that his

California conviction qualified as an aggravated felony within the meaning of § 8

U.S.C. § 1101(a)(43), DHS placed Gonzalez into expedited removal proceedings

pursuant to § 238(b) of the Immigration and Nationality Act (“INA”), 8 U.S.C. §

1228(b). That section, enacted as part of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 (“IIRIRA”), provides that aliens (other than

legal permanent resident aliens) convicted of an aggravated felony may be placed in

expedited removal proceedings as described in 8 U.S.C. § 1228(b)(4)1

 with no hearing
 (F) the final order of removal is not adjudicated by the same person

who issues the charges.

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before an immigration judge and no eligibility for any form of discretionary relief

from removal.

An immigration enforcement agent served a Notice of Intent to Issue a Final

Administrative Removal Order (“NOI”) on Gonzalez on June 20, 2005, but Gonzalez

refused to acknowledge receipt of the NOI. On July 7, 2005, counsel for Gonzalez

sent notice of representation to DHS and requested a hearing before an immigration

judge on the charges in the NOI. DHS applied its procedures for expedited removal

proceedings and issued a final administrative order of removal on July 12, 2005.

Gonzalez timely petitions this Court for review of that order of removal, arguing that

he did not receive the benefit of the procedural safeguards in § 1228(b)(4) in violation

of his due process rights, that application of § 1228(b) to him was impermissibly

retroactive, and that he was treated differently from similarly situated aliens in

removal proceedings before an immigration judge in violation of his equal protection

rights.

II. DISCUSSION

We have jurisdiction over Gonzalez’s petition to review the administrative

order of removal. See 8 U.S.C. § 1228(b)(3) (establishing that an alien may seek

judicial review under INA § 242, 8 U.S.C. § 1252 of an order of removal issued after

expedited proceedings). Our jurisdiction to review constitutional claims and questions

of law has been codified in INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D). See, e.g.,

Wijono v. Gonzales, 439 F.3d 868, 871 (8th Cir. 2006). In addition, venue is proper

in the Eighth Circuit because the expedited proceeding was conducted and the final

order of removal was issued in Bloomington, Minnesota. 8 U.S.C. § 1252(b)(2) (“The
2

We note that § 1252(b)(2) refers to the location in which “the immigration

judge” completed the removal proceedings, while the expedited removal proceedings

established by § 1228(b) do not involve an immigration judge. However, we read the

cross-reference to § 1252(b) in the section establishing expedited proceedings as

indicating that the same venue rule applies to removal proceedings presided over by

any officer of DHS, not just by an immigration judge.

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petition for review [of an order of removal] shall be filed with the court of appeals for

the judicial circuit in which the immigration judge completed the proceedings.”).2

 

A. Due Process

Gonzalez argues that he did not receive the benefit of the procedural safeguards

in § 1228(b)(4). We do not reach Gonzalez’s due process claim because Gonzalez

failed to exhaust his administrative remedies. “[W]e have subject-matter jurisdiction

over aliens’ unexhausted constitutional claims unless the claims concern procedural

errors correctable by the administrative tribunal.” Geach v. Chertoff, 444 F.3d 940,

945 (8th Cir. 2006).

The NOI served on June 20, 2005 notified Gonzalez that he had ten calendar

days to respond to the charges. See 8 C.F.R. § 1238.1(c). The NOI informed

Gonzalez of each of the rights and opportunities available to him under § 1228(b)(4)

and 8 C.F.R. § 1238.1, including the ability to request an extension of time to respond

to the charges, and informed Gonzalez of the procedure for exercising those rights.

However, Gonzalez first refused to acknowledge service of the NOI and then

responded through counsel on July 7, 2005, well past the ten-day deadline. Even in

his late response, Gonzalez only raised issues pertaining to reinstatement of his 1989

deportation order, an issue that the NOI did not address. Had Gonzalez timely

responded to the NOI, the administrative officer who adjudicated his order of removal

could have addressed any claims of deficient process. Therefore, Gonzalez’s failure

to respond to the NOI is a failure to exhaust administrative remedies that precludes
3

The provision became effective on April 1, 1997. See IIRIRA § 309(a), 110

Stat. 3009-625 (“[T]his subtitle and the amendments made by this subtitle shall take

effect on the first day of the first month beginning more than 180 days after the date

of the enactment of this Act .”).

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our Court’s review of his due process claim. Cf. Wijono, 439 F.3d at 871(holding that

this Court’s consideration of a due process argument based on an IJ’s processing of

an asylum claim was precluded by the alien’s failure to raise the claim to the Board

of Immigration Appeals).

B. Retroactive Effect

Gonzalez contends that application of the expedited removal procedures in §

1228(b) was impermissibly retroactive. We disagree. “If the statute would operate

retroactively, our traditional presumption teaches that it does not govern absent clear

congressional intent favoring such a result.” Landgraf v. USI Film Prods., 511 U.S.

244, 280 (1994). Because the statute in this case does not expressly address whether

it should apply retroactively, we must determine whether applying the new statute

would have retroactive effect; if so, we presume it does not govern. Alvarez-Portillo

v. Ashcroft, 280 F.3d 858, 864-65 (8th Cir. 2002). Although Gonzalez failed to

exhaust this claim, we consider it on the merits because it is not a “procedural error[]

correctable by the administrative tribunal.” Geach, 444 F.3d at 945. 

“A statute has retroactive effect when it takes away or impairs vested rights

acquired under existing laws, or creates a new obligation, imposes a new duty, or

attaches a new disability, in respect to transactions or considerations already past.”

INS v. St. Cyr, 533 U.S. 289, 321 (2001) (internal quotation omitted). Gonzalez

unlawfully reentered the United States in 1991. Before the establishment of § 1228(b)

expedited removal proceedings by IIRIRA,3

 Gonzalez could have pursued adjustment

of status based on his marriage to a United States citizen in 1993 as a defense to

removal, via a waiver of inadmissibility under INA § 212(h), 8 U.S.C. § 1182(h).
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Aliens in expedited removal proceedings, however, are not eligible for the

discretionary § 212(h) waiver. See INA § 238(b)(5), 8 U.S.C. § 1228(b)(5) (“No alien

described in this section shall be eligible for any relief from removal that the Attorney

General may grant in the Attorney General’s discretion.”). Essentially, Gonzalez

argues that applying the expedited removal procedures to him was impermissibly

retroactive because, by depriving him of the opportunity to apply for adjustment of

status available when he reentered, it attached a new legal disability to a past act.

After the instant case was argued, the Supreme Court decided a retroactivity

challenge to a similar provision established by IIRIRA in Fernandez-Vargas v.

Gonzales, 126 S. Ct. 2422 (2006). The reinstatement-of-removal provision at issue

in Fernandez-Vargas 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 Act, and the

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

INA § 241(a)(5), 8 U.S.C. § 1231(a)(5). 

Fernandez-Vargas unlawfully reentered the United States in 1982. He started

a business, fathered a child in 1989 and married the mother, a United States citizen,

in 2001. He then filed an application for adjustment of status based on his marriage.

Alerted to his presence, the immigration authorities reinstated a 1981 deportation

order under § 1231(a)(5), with no possibility for adjustment of status, and removed

Fernandez-Vargas to Mexico. Fernandez-Vargas contended that the application of the

IIRIRA reinstatement-of-removal provision to him had retroactive effect because it

attached a new consequence to his past act of illegal reentry in that it deprived him of

the opportunity to apply for adjustment of status available at the time he reentered.
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Fernandez-Vargas, 126 S. Ct. at 2428-32 & n.10. The Supreme Court disagreed,

holding:

It is . . . the alien’s choice to continue his illegal presence, after illegal

reentry and after the effective date of the new law, that subjects him to

the new and less generous legal regime, not a past act that he is helpless

to undo up to the moment the Government finds him out.

Id. at 2432. Furthermore, while “[t]hat in itself is enough to explain that

Fernandez-Vargas has no retroactivity claim,” the conclusion is even stronger because

the six-month delay between the passage of IIRIRA and its effective date gave

“[u]nlawful alien reentrants like Fernandez-Vargas . . . the advantage of a grace period

between the unequivocal warning that a tougher removal regime lay ahead and actual

imposition of the less opportune terms of the new law.” Id. For these reasons, the

Supreme Court concluded that the application of the reinstatement-of-removal

provision was not retroactive.

This reasoning applies with equal force to the application of expedited removal

proceedings to Gonzalez. As with Fernandez-Vargas, it was Gonzalez’s “choice to

continue his illegal presence . . . that subject[ed] him to the new and less generous

legal regime” that denied him the opportunity to apply for adjustment of status, “not

a past act that he is helpless to undo.” Id. Also like Fernandez-Vargas, Gonzalez had

a six-month grace period between the passage of IIRIRA and its effective date in

which he “could have ended his illegal presence” or applied for adjustment of status

based on his 1993 marriage. Id. Under these circumstances, the Supreme Court in

Fernandez-Vargas found that the elimination of the opportunity to apply for

adjustment of status under the new law imposed no new burden on a completed act,

and we find that decision determinative on the issue of retroactivity in the instant
4

To the extent our decision in Alvarez-Portillo, 280 F.3d at 861 (holding that

“the substantive defenses to removal eliminated by [INA § 241(a)(5), 8 U.S.C. §

1231(a)(5)] may not be retroactively denied to aliens who illegally reentered prior to

enactment”), suggests a different result, it is overruled by Fernandez-Vargas. See

Fernandez-Vargas, 126 S. Ct. at 2427 & n.5.

5

Gonzalez is married to an American citizen and could therefore seek to adjust

his status under INA § 245(a), 8 U.S.C. § 1255(a) if he were placed in general

removal proceedings. 

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case.4

 Id. Therefore, we conclude that the application to Gonzalez of the expedited

removal procedures in § 1228(b) was not retroactive.

C. Equal Protection

Section 1228(b) gives the Attorney General discretion to place aliens (other

than legal permanent resident aliens) convicted of an aggravated felony into either the

expedited removal proceedings described in § 1228(b) or general removal proceedings

before an immigration judge as described in INA § 240, 8 U.S.C. § 1229a. §

1228(b)(1). Gonzalez claims that he was denied equal protection because similarly

situated aliens placed in general, rather than expedited, removal proceedings could

have applied for adjustment of status.5

“[A] statutory classification that neither proceeds along suspect lines nor

infringes fundamental constitutional rights must be upheld against equal protection

challenge if there is any reasonably conceivable state of facts that could provide a

rational basis for the classification.” Lukowski v. INS, 279 F.3d 644, 647 (8th Cir.

2002) (quoting FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993)).

Gonzalez does not allege any suspect basis for the direction of some aliens described

in § 1228(b) into expedited removal proceedings and others into general removal

proceedings. Therefore, the Government need only assert a rational basis for the

Attorney General’s discretion to direct some aliens described in § 1228(b) into
6

We also agree with the Fifth Circuit that there is no need in this case to equate

the Attorney General’s discretion to place an alien in expedited or general removal

proceedings with “prosecutorial choice.” See Flores-Ledezma, 415 F.3d at 381 (citing

United States v. Batchelder, 442 U.S. 114, 123-25 (1979)). Under the doctrine of

prosecutorial choice, the Government’s choice “to prosecute under either of two

provisions, one of which has harsher consequences than the other” is “all but immune

from [due process or equal protection] challenge unless tainted by determinations

made on the basis of a suspect class.” Id. Because we resolve the case on direct equal

protection grounds, we need not address the Government’s attempt to analogize the

situation to prosecutorial choice.

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potentially more lenient general, as opposed to expedited, removal proceedings. As

it did in an identical equal protection challenge to § 1228(b) in the Fifth Circuit, “the

Government points out that [aliens described in § 1228(b)] include many persons who

could rationally be granted special deference and courtesy under the immigration

laws: ambassadors, diplomats, employees of foreign governments, journalists,

scholars, teachers, and professors, among others.” Flores-Ledezma v. Gonzales, 415

F.3d 375, 381 (5th Cir. 2005). We agree with our sister circuit that this reasoning

constitutes “a rational basis for the Attorney General’s exercise of such discretion.”

Id. at 382. Therefore, Gonzalez’s equal protection challenge fails.6

III. CONCLUSION

We conclude that Gonzalez failed to exhaust his administrative remedies with

respect to his due process claim and that the application of expedited removal

proceedings was not retroactive and did not violate his equal protection rights.

Accordingly, we deny his petition for review.

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