FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RAUL MORALES-IZQUIERDO, 

Petitioner, No. 03-70674

v. INS No.  A79-166-816 ALBERTO R. GONZALES, Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

December 13, 2005—Portland, Oregon

Proceedings Stayed January 5, 2006

Resubmitted June 22, 2006

Filed February 6, 2007

Before: Mary M. Schroeder, Chief Judge, Harry Pregerson,

Stephen Reinhardt, Alex Kozinski, Pamela Ann Rymer,

Michael Daly Hawkins, Sidney R. Thomas, Susan P. Graber,

William A. Fletcher, Ronald M. Gould and Jay S. Bybee,

Circuit Judges.

Opinion by Judge Kozinski;

Dissent by Judge Thomas

1389
COUNSEL

Robert Pauw, Gibbs Houston Pauw, Seattle, Washington, for

the petitioner. 

MORALES-IZQUIERDO v. GONZALES 1393
Peter D. Keisler, Assistant Attorney General, Civil Division;

Jonathan F. Cohn, Deputy Assistant Attorney General; Donald E. Keener, Deputy Director, Office of Immigration Litigation; John Andre, Senior Litigation Counsel, Office of

Immigration Litigation, Civil Division, Washington, D.C., for

the respondent. 

Trina A. Realmuto and Nadine K. Wettstein, American Immigration Law Foundation, Washington, D.C., as amici curiae in

support of the petitioner. 

OPINION

KOZINSKI, Circuit Judge: 

When an alien subject to removal leaves the country, the

removal order is deemed to be executed. If the alien reenters

the country illegally, the order may not be executed against

him again unless it has been “reinstated” by an authorized official.1

 Until 1997, removal orders could only be reinstated by

immigration judges. That year, the Attorney General changed

the applicable regulation to delegate this authority, in most

cases, to immigration officers. We consider whether this

change in regulation is valid. 

1Why this is so is not clear, and neither party explains it. It’s certainly

possible to conceive of a system where a removal order remains in force

permanently and may be re-executed whenever the alien is found to have

reentered the country illegally. As Judge Fernandez has noted, “there is

nothing unusual about allowing multiple executions on a judgment until

the full relief under it has been obtained.” Castro-Cortez v. INS, 239 F.3d

1037, 1055 (9th Cir. 2001) (Fernandez, J., dissenting), abrogated by

Fernandez-Vargas v. Gonzales, 126 S. Ct. 2422, 2427 & n.5 (2006). That,

however, does not appear to be the way our immigration law has developed. 

1394 MORALES-IZQUIERDO v. GONZALES
I

Morales-Izquierdo, a native and citizen of Mexico, was

arrested in 1994 for entering the United States without inspection. He was released and served with a mail-out order to

show cause.2 Eventually, a removal hearing was scheduled,

and Morales was notified via certified mail of the time and

place of the hearing. When Morales failed to attend the hearing, he was ordered removed in absentia.3

 Morales claims he

never received notice of the hearing date, but the record

shows that the notice was mailed to his address of record, and

the Immigration and Naturalization Service (INS) received a

return receipt bearing the signature “Raul Morales.” 

A warrant of removal was issued, and the INS apprehended

and removed Morales from the United States in 1998.4 He

2When an alien is apprehended for an immigration violation, the immigration officer typically serves the alien with what is known as a mail-out

order to show cause. What this means is that the alien is handed the order

upon submitting an address of record. This order explains why the alien

is in proceedings and under what legal authority, and it provides the

address of the Immigration Court. 8 C.F.R. § 1003.15. The order also

states that an alien must advise that court of any change in address, and

that failure to provide such information may result in an in absentia hearing. Id. It’s called a “mail-out” order because notice of the hearing date

is subsequently mailed out to the alien’s address of record. 

3Morales’ 1994 removal order was actually a “deportation” order,

though the difference is of no legal consequence. The Illegal Immigration

Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No.

104-208, div. C, 110 Stat. 3009-546, replaced all references to “deportation” with “removal.” See Gerald L. Neuman, Habeas Corpus, Executive

Detention, and the Removal of Aliens, 98 Colum. L. Rev. 961, 966 (1998)

(“IIRIRA realigned the vocabulary of immigration law, creating a new

category of ‘removal’ proceedings that largely replaces what were formerly exclusion proceedings and deportation proceedings . . . .”). To avoid

more confusion than necessary, we use the term “removal,” even when

referring to a pre-1996 “deportation.” 

4Contrary to the administrative record, Morales claims he was not

removed at all, but that he voluntarily departed. The difference is immaterial for reinstatement purposes. See n.14 infra. 

MORALES-IZQUIERDO v. GONZALES 1395
attempted to reenter illegally in January 2001—this time

using a false border-crossing card. He was apprehended at the

port of entry, and was expeditiously removed for misrepresenting a material fact in violation of the Immigration and

Nationality Act (INA) § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)

(6)(C)(i).5 Undaunted, Morales reentered the United States

undetected the following day—a fact he disclosed to the

immigration officer during the reinstatement proceeding. 

Sometime between his 1998 and 2001 removals, Morales

married a United States citizen. In March 2001, Morales’ wife

filed an I-130 alien relative petition based on his marriage to

a United States citizen. When Morales and his wife met with

the INS in January 2003, an immigration officer served them

with a denial of the I-130 petition and a notice of intent to

reinstate Morales’ removal order in accordance with INA

§ 241(a)(5), 8 U.S.C. § 1231(a)(5) and 8 C.F.R. § 241.8.

Morales petitioned here for review of the reinstatement order.

The case came before a three-judge panel, which held that

the regulation authorizing immigration officers to issue reinstatement orders is invalid and Morales’ removal order could

only be reinstated by an immigration judge. See MoralesIzquierdo v. Ashcroft, 388 F.3d 1299, 1305 (9th Cir. 2004).

We took the case en banc. See Morales-Izquierdo v. Gonzales, 423 F.3d 1118 (9th Cir. 2005). 

II

As noted, Morales cannot be removed again under the 1994

removal order unless and until it was reinstated. The order

was reinstated by an immigration officer, who acted pursuant

to 8 C.F.R. § 241.8, which authorizes immigration officers—

5Pre-IIRIRA, this expedited removal at the border would have been called an “exclusion.” However, “removal” now encompasses both “exclusion” and “deportation.” See n.3 supra. Again, Morales denies that he was

forcibly removed, claiming that he departed voluntarily. 

1396 MORALES-IZQUIERDO v. GONZALES
rather than immigration judges6—to reinstate prior removal

orders of aliens who illegally reenter the United States.7

Morales argues that the Attorney General exceeded his

authority in promulgating the regulation. The three-judge

panel so held. However, the First, Sixth, Eighth and Eleventh

Circuits have upheld the regulation against similar challenges.

See De Sandoval v. U.S. Att’y Gen., 440 F.3d 1276, 1283

(11th Cir. 2006); Ochoa-Carrillo v. Gonzales, 437 F.3d 842,

846 (8th Cir. 2006); Lattab v. Ashcroft, 384 F.3d 8, 20 (1st

Cir. 2004). The Sixth Circuit saw the matter as so clear-cut

that it did not deem it necessary to publish its disposition

upholding the regulation. Tilley v. Chertoff, 144 Fed. App’x

536, 539-40 (6th Cir. 2005) (mem.), cert. denied, 127 S. Ct.

62 (2006). No other court has reached a contrary conclusion.

[1] A. In determining whether 8 C.F.R. § 241.8 is valid,

we apply the familiar Chevron two-step approach. Chevron

U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837

(1984). Under Chevron step one, we ask “whether Congress

has directly spoken to the precise question at issue,” id. at 842

—i.e., whether DHS can reinstate a prior removal order without a full-blown hearing before an immigration judge. 

[2] Here, two sections of the INA are potentially implicated. The first, INA § 240, titled “Removal proceedings,”

6A prior regulation required a hearing before an immigration judge. 8

C.F.R. § 242.23 (repealed 1997). 

7This regulation was originally adopted by the INS, which was part of

the Department of Justice. See Inspection and Expedited Removal of

Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed. Reg. 10,312, 10,379 (Mar. 6, 1997)

(codified in scattered parts of 8 C.F.R.). The INS ceased to exist in 2003,

and most of its functions were transferred to the Department of Homeland

Security (DHS). See Homeland Security Act of 2002, Pub. L. No. 107-

296, §§ 441, 471, 116 Stat. 2135, 2192, 2205 (codified at 6 U.S.C. §§ 251,

291). To minimize confusion, we use the term “INS,” even when referring

to DHS’ successor to the INS-U.S. Immigration and Customs Enforcement. 

MORALES-IZQUIERDO v. GONZALES 1397
requires that “[a]n immigration judge shall conduct proceedings for deciding the inadmissibility or deportability of an

alien.” INA § 240(a)(1), 8 U.S.C. § 1229a(a)(1).8 The second

relevant section, INA § 241, titled “Reinstatement of removal

orders against aliens illegally reentering,” 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. 

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

no mention of a hearing before an immigration judge, or any

other procedure. Most of the section is devoted to limiting the

alien’s rights and ensuring that the removal is carried out

expeditiously. 

[3] Morales argues that Congress spoke clearly as to

whether a hearing before an immigration judge is required for

reinstating a prior removal order, and did so in INA § 240.

While recognizing that reinstatement is mentioned nowhere in

this section, Morales claims a reinstatement order is functionally a removal order because it has the effect of authorizing

an alien’s removal. In other words, reinstatement is simply a

species of removal, and is thus governed by INA § 240, which

calls for a hearing before an immigration judge. In support of

his argument, Morales points out that when Congress has

8Section 240 also provides certain procedural protections: the right to

representation, “a reasonable opportunity to examine the evidence against

the alien, to present evidence on the alien’s own behalf, and to crossexamine witnesses,” and a complete record of the proceedings. INA

§ 240(b)(4), 8 U.S.C. § 1229a(b)(4). 

1398 MORALES-IZQUIERDO v. GONZALES
intended to exempt certain removal proceedings from the INA

§ 240 hearing requirement, it has done so explicitly.9 Reinstatement is not among those proceedings explicitly

exempted. 

[4] Morales’ argument that the failure to exempt reinstatement from the requirement that a hearing be held before an

immigration judge, particularly when similar provisions of the

same statute contain explicit exemptions, carries some force.

But such failure hardly amounts to the kind of unambiguous

expression of congressional intent that would remove the

agency’s discretion at Chevron step one. Far more telling is

the fact that reinstatement and removal are placed in different

sections, which “logically can be understood as indicating a

congressional intention to treat reinstatement determinations

differently from first-instance determinations of removability.” Lattab, 384 F.3d at 18 (citing Alexander v. Sandoval, 532

U.S. 275, 288-91 (2001)); see also De Sandoval, 440 F.3d at

1281. After all, “the words of a statute must be read in their

context and with a view to their place in the overall statutory

scheme.” FDA v. Brown & Williamson Tobacco Corp., 529

U.S. 120, 133 (2000) (quoting Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989) (internal quotation marks

omitted)). Here, the fact that Congress placed reinstatement in

a separate section from removal suggests that reinstatement is

a separate procedure, not a species of removal. 

[5] A closer look at the texts of the two sections confirms

that Congress intended reinstatement to be a different and far

9

See INA § 235(b)(1), 8 U.S.C. § 1225(b)(1) (directing immigration

officers to “order the alien removed . . . without further hearing” for lack

of valid documents or for fraud); INA § 235(c), 8 U.S.C. § 1225(c)

(directing immigration officers to “order the alien removed” if suspected

of being inadmissible under security threat grounds, and report the order

to the Attorney General who will decide whether to provide a hearing);

INA § 238, 8 U.S.C. § 1228 (directing the Attorney General to institute

expedited removal procedures—either by an immigration judge or officer

—for aliens convicted of aggravated felonies). 

MORALES-IZQUIERDO v. GONZALES 1399
more summary procedure than removal. Under INA § 240,

first-instance removal proceedings involve a broad inquiry.

To order an individual removed, the immigration judge must

make two determinations: (1) whether the individual is

removable from the United States; and, if so, (2) whether the

individual is otherwise eligible for relief from removal. See

INA § 240, 8 U.S.C. § 1229a. While the first determination

can be relatively straightforward, the second is often complex

and fact-intensive. The types of relief from removal include

cancellation of removal for extreme hardship on U.S. citizen

family members, adjustment of status for spouses of U.S. citizens and asylum. See id.; see also INA § 208, 8 U.S.C. § 1158

(asylum); INA § 240A, 8 U.S.C. § 1229b (cancellation of

removal; adjustment of status). Determining what relief is

warranted under any of these provisions requires a formal

hearing before a trier of fact, such as an immigration judge.

[6] The scope of a reinstatement inquiry under INA § 241

is much narrower, and can be performed like any other ministerial enforcement action. The only question is whether the

alien has illegally reentered after having left the country while

subject to a removal order. As the Eleventh Circuit pointed

out, INA § 241 reinstatement—unlike INA § 240 firstinstance removal—“deprives aliens of any relief, reopening,

or review at the reinstatement stage.” De Sandoval, 440 F.3d

at 1281. By barring all relief, Congress eliminated the second

and much more difficult removal inquiry. The First and

Eighth Circuits similarly found that “the elimination of any

exogenous defense to reinstatement significantly narrows the

range of issues to be adjudicated, thereby limiting the value

of additional procedures.” Lattab, 384 F.3d at 20; see also

Alvarez-Portillo v. Ashcroft, 280 F.3d 858, 867 (8th Cir.

2002) (same). 

Morever, the texts of the two sections differ in their delegation of discretion: INA § 240 expressly requires that an immigration judge conduct removal proceedings, whereas INA

§ 241 authorizes the Attorney General to reinstate removal

1400 MORALES-IZQUIERDO v. GONZALES
orders. “This distinction suggests Congress knew how to

mandate a hearing before an immigration judge, but chose not

to do so in the context of reinstatement orders.” De Sandoval,

440 F.3d at 1281. 

[7] Given the different layout of the two sections and their

very different scope, we conclude that Congress did not consider removal and reinstatement to be equivalent. Certainly,

nothing in the text of the INA, or the statutory scheme, supports Morales’ argument that reinstatement is merely a species of removal. Nor does anything in the INA express an

unequivocal congressional intent that reinstatement proceedings be conducted before an immigration judge. If anything,

the statutory scheme supports the opposite conclusion. See

Tilley, 144 Fed. App’x at 540 (“[T]he regulations promulgated in 8 C.F.R. § 241.8(a) meet all of the requirements of

[INA] § 241(a)(5). Therefore, we do not see an ambiguity that

requires us to review the agency’s implementation of its governing statute.”). Indeed, it’s hard to imagine why Congress

would have bothered with the detailed provisions of INA

§ 241 if it intended to give an alien subject to reinstatement

exactly the same rights and procedural protections as an alien

facing removal for the first time.10

[8] B. While this case could probably be decided under

the first Chevron inquiry, all other circuits that have published

opinions on this matter decided the issue at Chevron step two.

In an abundance of caution, we therefore proceed to the second step, which requires us to ask “whether the agency’s

answer is based on a permissible construction of the statute.”

Chevron, 467 U.S. at 843. In making this determination, we

10Or, in the words of Judge Fernandez, “An objective observer would

have asked, as Congress did, just what was the purpose of all of that procedure, all of those punctilious niceties, which can take years to complete,

if the person could just step back into the country a few days later and

have the roundelay go on?” Castro-Cortez, 239 F.3d at 1054 (Fernandez,

J., dissenting). 

MORALES-IZQUIERDO v. GONZALES 1401
“need not conclude that the agency construction was the only

one it permissibly could have adopted . . . , or even the reading the court would have reached if the question initially had

arisen in a judicial proceeding.” Id. at 843 n.11. Rather, “Congress, when it left ambiguity in a statute meant for implementation by an agency, understood that the ambiguity would be

resolved, first and foremost, by the agency, and desired the

agency (rather than the courts) to possess whatever degree of

discretion the ambiguity allows.” Nat’l Cable & Telecomms.

Ass’n v. Brand X Internet Servs., 125 S. Ct. 2688, 2700

(2005) (quoting Smiley v. Citibank (S.D.), N.A., 517 U.S. 735,

740-41 (1996) (internal quotation marks omitted)). 

Deference to an agency’s interpretation “is especially

appropriate in the immigration context where officials ‘exercise especially sensitive political functions that implicate

questions of foreign relations.’ ” INS v. Aguirre-Aguirre, 526

U.S. 415, 425 (1999) (quoting INS v. Abudu, 485 U.S. 94, 110

(1988)). For these reasons, the First, Eighth and Eleventh Circuits had “little difficulty in concluding that the government’s

interpretation satisfies” the second step of Chevron. Lattab,

384 F.3d at 19-20; see also De Sandoval, 440 F.3d at 1283;

Ochoa-Carrillo, 437 F.3d at 846. We find no fault with this

conclusion. 

Morales raises two issues, however, that our sister circuits

did not consider. First, he invokes the doctrine of constitutional avoidance, asking us to construe the statute so as to

avoid serious constitutional issues. Morales relies on Clark v.

Martinez, 543 U.S. 371 (2005):

[W]hen deciding which of two plausible statutory

constructions to adopt, a court must consider the

necessary consequences of its choice. If one of them

would raise a multitude of constitutional problems,

the other should prevail—whether or not those constitutional problems pertain to the particular litigant

before the Court. 

1402 MORALES-IZQUIERDO v. GONZALES
Id. at 380-81; see also INS v. St. Cyr, 533 U.S. 289, 299-300

(2001) (same). According to Morales, construing the statute

so as to require that reinstatement hearings be held before an

immigration judge would avoid constitutional problems that

arise by assigning the reinstatement function to an immigration officer. See Part III infra (discussing various constitutional challenges Morales raises to the reinstatement process).

The problem with Morales’ argument is that we are not

deciding between two plausible statutory constructions; we

are evaluating an agency’s interpretation of a statute under

Chevron. At step two of this inquiry, our function is “not simply [to] impose [our] own construction on the statute, as

would be necessary in the absence of an administrative interpretation. Rather, . . . the question for the court is whether the

agency’s answer is based on a permissible construction of the

statute.” Chevron, 467 U.S. at 843 (internal footnote omitted).

When Congress has explicitly or implicitly left a gap for an

agency to fill, and the agency has filled it, we have no authority to re-construe the statute, even to avoid potential constitutional problems; we can only decide whether the agency’s

interpretation reflects a plausible reading of the statutory text.

Clark v. Martinez, and the constitutional avoidance doctrine

it embodies, plays no role in the second Chevron inquiry. 

Second, Morales argues that the Attorney General impermissibly eliminated the hearing requirement in 1997, when it

had been a mainstay of the reinstatement process during the

previous four decades. Compare 8 C.F.R. § 242.23(b)

(repealed 1997) (requiring a hearing before an immigration

judge for reinstatement), with 8 C.F.R. § 241.8(a) (“The alien

has no right to a hearing before an immigration judge in [reinstatement proceedings].”). Morales labels this argument

“[c]ongressional acquiescence in the prior administrative

practice.” The Supreme Court, however, has drawn a sharp

distinction between “ ‘Congress’ deliberate acquiescence’ ”

and its “failure to express any opinion.” Rapanos v. United

States, 126 S. Ct. 2208, 2231 (2006) (plurality opinion). ConMORALES-IZQUIERDO v. GONZALES 1403
gressional acquiescence can only be inferred when there is

“overwhelming evidence” that Congress explicitly considered

the “precise issue” presented to the court. Id. (quoting Solid

Waste Agency of N. Cook County v. U.S. Army Corps of

Eng’rs, 531 U.S. 159, 169 n.5 (2001) (“overwhelming evidence”); Bob Jones Univ. v. United States, 461 U.S. 574, 600

(1983) (“precise issue”)). 

Here, we concluded at Chevron step one that Congress has

not expressed a clear preference that reinstatement hearings

be held before immigration judges; if anything, the INA’s

statutory scheme supports the opposite conclusion. Nor has

Morales pointed to anything in the legislative history that discloses congressional acquiescence in the agency’s past

practice—and certainly not the requisite “overwhelming evidence.” A finding of congressional acquiescence must be

reserved for those rare instances where it is very clear that

Congress has considered and approved of an agency’s practice, lest the agency be improperly deprived of the very flexibility Congress intended to delegate. Such is not the case here.

We also understand Morales to be arguing that the agency’s

change in policy was impermissibly inconsistent with its past

practice. An “[u]nexplained inconsistency is . . . a reason for

holding an interpretation to be an arbitrary and capricious

change from agency practice under the Administrative Procedure Act.” Brand X, 125 S. Ct. at 2699 (emphasis added).

This rule, too, is reserved for rare instances, such as when an

agency provides no explanation at all for a change in policy,

or when its explanation is so unclear or contradictory that we

are left in doubt as to the reason for the change in direction.

A broader rule would deny agencies the necessary flexibility

to change policies in light of “changed factual circumstances,

or a change in administrations.” Id. at 2700. Indeed, Chevron

itself involved a 180-degree reversal in an agency’s position

that survived judicial scrutiny. Chevron, 467 U.S. at 857-58;

see also id. at 863 (“An initial agency interpretation is not

instantly carved in stone.”). 

1404 MORALES-IZQUIERDO v. GONZALES
[9] The regulatory change here was adequately explained.

The change in the reinstatement regulation was part of a

major overhaul of the INA’s implementing regulations,

designed “to implement the provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996

(IIRIRA) and the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA).” Inspection and Expedited Removal

of Aliens; Detention and Removal of Aliens; Conduct of

Removal Proceedings; Asylum Procedures, 62 Fed. Reg. 444,

444 (proposed Jan. 3, 1997) (codified in scattered parts of 8

C.F.R.). The notice accompanying the proposed regulations

explains that the cumbersome procedure embodied in the

existing reinstatement rule “resulted in limited use of the provision.” Id. at 451. Such limited use was consistent with preIIRIRA law, which applied reinstatement to a narrow class of

previously-deported aliens.11 But IIRIRA dramatically

expanded the class of aliens subject to reinstatement, while

narrowing the defenses available in such proceedings. As the

Supreme Court noted last Term, “In IIRIRA, Congress

replaced [the existing] reinstatement provision with one that

toed a harder line . . . . Unlike its predecessor, § 241(a)(5)

applies to all illegal reentrants, explicitly insulates the

removal orders from review, and generally forecloses discretionary relief from the terms of the reinstated order.”

Fernandez-Vargas v. Gonzales, 126 S. Ct. 2422, 2426 (2006).

Congress’ ambitious purpose behind IIRIRA was to “enable

the prompt admission of those who are entitled to be admitted, the prompt exclusion or removal of those who are not so

entitled, and the clear distinction between these categories.”

11Congress first instituted reinstatement in 1950, but only for certain

immigrants (e.g., “subversives” and “anarchists”). Fernandez-Vargas v.

Gonzales, 126 S. Ct. 2422, 2425-26 (2006) (citing Internal Security Act of

1950, § 23, 64 Stat. 1012). The INA, passed in 1952, broadened the reinstatement provision to apply to a somewhat larger class of aliens, those

deported for engaging in certain unlawful activities—e.g., smuggling,

marriage fraud, crimes of moral turpitude, multiple criminal convictions,

aggravated felonies, illegal drug use or dealing, and terrorism activities.

See INA § 242, 8 U.S.C. § 1252 (repealed 1996). 

MORALES-IZQUIERDO v. GONZALES 1405
H.R. Rep. No. 104-469(I), at 111 (1996); see also id. at 107

(“Existing procedures to deny entry to and to remove illegal

aliens from the United States are cumbersome and duplicative.”); U.S. Representative Zoe Lofgren, A Decade of Radical Change in Immigration Law: An Inside Perspective, 16

Stan. L. & Pol’y Rev. 349, 354-70 (2005) (asserting, albeit in

disagreeing with its purpose, that IIRIRA aimed at streamlining the removal process). 

[10] The net effect of these statutory changes is two-fold.

First, IIRIRA brings vastly more aliens within the sweep of

the reinstatement provision, essentially making every

removed alien subject to reinstatement if he returns to the

United States without the Attorney General’s permission. Second, the decision to reinstate is now far more mechanical:

There need be no determination whether the alien falls into

one of the narrow categories specified in the earlier statute as

eligible for reinstatement, see n.11 supra, and aliens can no

longer seek certain kinds of relief, such as adjustment of status. These major legislative changes provide an adequate justification for the Attorney General’s decision to make parallel

changes to the implementing regulations. “Providing a

mechanical procedure for the reinstatement of prior orders is

entirely consistent with [IIRIRA’s] purpose”—“to make the

removal of illegal reentrants more expeditious.” Lattab, 384

F.3d at 20. 

[11] We thus conclude that the regulation is a valid interpretation of the INA. 

III

We now turn to Morales’ argument that the regulation, if

authorized under Chevron, is nevertheless invalid because it

violates various constitutional guarantees. 

[12] A. Morales first argues that the regulation violates

due process because it assigns the reinstatement determination

1406 MORALES-IZQUIERDO v. GONZALES
to an immigration officer—an official not qualified to resolve

disputed questions as to the factual predicates for reinstatement. But reinstatement only requires proof that (1) petitioner

is an alien, (2) who was subject to a prior removal order, and

(3) who illegally reentered the United States. INA

§ 241(a)(5), 8 U.S.C. § 1231(a)(5); 8 C.F.R. § 241.8. And

“[a]s a predicate to obtaining relief for a violation of procedural due process rights in immigration proceedings, an alien

must show that the violation prejudiced him.” Padilla v. Ashcroft, 334 F.3d 921, 924-25 (9th Cir. 2003) (quoting RamirezAlejandre v. Ashcroft, 320 F.3d 858, 875 (9th Cir. 2003) (en

banc)). To show prejudice, Morales must present “plausible

scenarios in which the outcome of the proceedings would

have been different” if a more elaborate process were provided. Walters v. Reno, 145 F.3d 1032, 1044 (9th Cir. 1998).

We note at the outset that the regulation provides significant procedural safeguards against erroneous reinstatements.

First, the immigration officer must verify the identity of the

alien. “In disputed cases, verification of identity shall be

accomplished by a comparison of fingerprints.” 8 C.F.R.

§ 241.8(a)(2). If no fingerprints are available, the removal

order cannot be reinstated under 8 C.F.R. § 241.8. Id.; see

also Ochoa-Carrillo, 437 F.3d at 847 (discussing the fingerprint requirement). Second, the immigration officer “must

obtain the prior order of exclusion, deportation, or removal

relating to the alien.” 8 C.F.R. § 241.8(a)(1). Without this

documentation, 8 C.F.R. § 214.8 cannot be used and the matter is referred to an immigration judge.12 And, third, the offi12Similarly, a removal order cannot be reinstated under 8 C.F.R. § 241.8

if the alien raises either (1) an unresolved adjustment of status claim under

the Haitian Refugee Immigrant Fairness Act of 1998 or the Nicaraguan

Adjustment and Central American Relief Act, or (2) an asylum claim. See

8 C.F.R. § 241.8(d)-(e). If the alien raises an adjustment of status claim

under either of these statutes, “[t]he immigration officer may not reinstate

the prior order in accordance with this section unless and until a final decision to deny the application for adjustment has been made.” 8 C.F.R.

MORALES-IZQUIERDO v. GONZALES 1407
cer must determine whether the alien reentered the United

States illegally. “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. § 241.8(a)(3). 

[13] We need not determine whether these procedures are

adequate as to all aliens in all cases because Morales does not

dispute that he satisfies the statutory predicates for reinstatement. Rather, he argues that his 1994 in absentia removal

order is defective because he never got notice of the removal

hearing, his 1998 removal was actually a voluntary departure

and his marriage to a U.S. citizen entitled him to adjustment

of status. But the reinstatement statute specifically precludes

Morales from seeking to reopen the previous removal order

based on defective service or any other grounds. INA

§ 241(a)(5), 8 U.S.C. § 1231(a)(5).13 And, that Morales may

have departed voluntarily rather than been deported is of no

consequence.14 Finally, Morales was not entitled to adjust-

§ 241.8(d). Likewise, if the alien “expresses a fear of returning to the

country designated in that order, the alien shall be immediately referred to

an asylum officer for an interview to determine whether the alien has a

reasonable fear of persecution or torture.” 8 C.F.R. § 241.8(e); see also

Fernandez-Vargas, 126 S. Ct. at 2426 n.4 (same). If the asylum officer

determines that the fear is reasonable, he must refer the matter to an immigration judge “for full consideration of the request for withholding of

removal.” 8 C.F.R. § 208.31(e). 

13The INA does have a procedure an alien may use to reopen an in

absentia removal order based on a claim of lack of notice, see INA

§ 240(b)(5)(C)(ii), 8 U.S.C. § 1229a(b)(5)(C)(ii), but Morales has failed to

avail himself of it. 

14Any mode of departure—voluntary or involuntary—while subject to

an order of removal constitutes a removal for reinstatement purposes. See

INA § 241(a)(5), 8 U.S.C. § 1231(a)(5) (ordering the Attorney General to

reinstate a removal order if “an alien has reentered the United States illegally after having been removed or having departed voluntarily [while]

under an order of removal”). 

1408 MORALES-IZQUIERDO v. GONZALES
ment of status.15 Because none of the grounds Morales raises

would have been a proper basis for relief during the reinstatement process, he suffered no prejudice by being denied access

to an official who could adjudicate facts that might support

these claims. Morales has thus failed to establish the requisite

prejudice. See Padilla, 334 F.3d at 925 (“A hearing before an

immigration judge, therefore, could not help [petitioner]

because . . . [s]ection 1231(a)(5) provides that an alien who

meets those criteria flatly ‘is not eligible’ for other relief.”).

[14] We are satisfied, moreover, that the regulation provides sufficient procedural safeguards to withstand a facial

challenge for patent procedural insufficiency. Given the narrow and mechanical determinations immigration officers must

make and the procedural safeguards provided by 8 C.F.R.

§ 241.8, see pp. 1426-28 supra, the risk of erroneous deprivation is extremely low. DHS estimates that immigration officers have issued approximately 211,000 reinstatement orders

nationwide since 1999, and the amici identify only three such

cases that have been reversed on grounds other than retroactivity.16 Because the risk of error is so low, any additional or sub15Morales’ wife filed an I-130 alien relative petition, concurrently with

Morales’ I-485 application to adjust status, in March 2001. Morales, however, was unlawfully present in the United States for more than a year

before removal and then reentered illegally. Consequently, he is inadmissible for ten years since his last departure from the United States. See INA

§ 212(a)(9)(C), 8 U.S.C. § 1182(a)(9)(C). 

As an inadmissible alien seeking adjustment of status, he needed to file

an I-212 petition for a discretionary waiver before he could apply for reentry. INA § 245(i), 8 U.S.C. § 1255(i); 8 C.F.R. § 212.2(e). He didn’t do

so before the prior removal order was reinstated, so he “is not eligible and

may not apply for any relief.” INA § 241(a)(5), 8 U.S.C. § 1231(a)(5);

Padilla, 334 F.3d at 925 (holding that reinstatement bars all relief, including relief under INA § 245(i)); cf. Perez-Gonzalez v. Ashcroft, 379 F.3d

783, 788 (9th Cir. 2004) (“Given the fact that Perez-Gonzalez applied for

the waiver before his deportation order was reinstated, he was not yet subject to its terms and, therefore, was not barred from applying for relief.”).

16The Supreme Court held that the reinstatement provision has no

impermissible retroactive effect in Fernandez-Vargas, 126 S. Ct. at 2434,

so the officers did not err in reinstating pre-1996 removal orders. 

MORALES-IZQUIERDO v. GONZALES 1409
stitute procedural safeguards—including those Morales seeks

—would produce marginal protections, if any, against erroneous determinations, while the cost in terms of resources and

delay would be substantial. Due process does not require such

a poor bargain. See Mathews v. Eldridge, 424 U.S. 319, 335

(1976). 

While the regulation does not offend due process, we leave

open the possibility that individual petitioners may raise procedural defects in their particular cases. Morales himself

raises several such challenges, and to these we now turn. 

[15] B. Morales first claims he had no meaningful opportunity to review his file and respond to adverse evidence. But

Morales points to no material errors in his file; nor does he

explain what evidence he would have presented, had he been

given an opportunity to do so. 8 C.F.R. § 241.8(b) requires

immigration officers to provide notice, and permits the alien

to make a written or oral statement to be considered by the

officer under 8 C.F.R. § 241.8(a)(3). Morales was given the

benefit of these procedures, and he has failed to show how a

more elaborate process would have helped him. 

[16] Second, he argues he should have had an opportunity

to obtain assistance of counsel, but there is no Sixth Amendment right to counsel in any civil removal proceeding. LaraTorres v. Ashcroft, 383 F.3d 968, 974 (9th Cir. 2004). Any

such right is statutory, and the INA extends the right to representation by counsel only to aliens in proceedings before an

immigration judge. Similarly, the Administrative Procedure

Act provides a right to counsel “in every case of adjudication

required by statute to be determined on the record after opportunity for an agency hearing.” 5 U.S.C. § 554(a). The INA

does not require a hearing here. In any event, Morales cannot

show prejudice: He does not contest the predicates for reinstatement, and was not eligible for any type of relief. Having

a lawyer would not have changed the outcome. 

1410 MORALES-IZQUIERDO v. GONZALES
[17] Morales’ third argument, that the immigration officer

who reinstated his removal order suffered from institutional

bias, is foreclosed by Marcello v. Bonds, 349 U.S. 302

(1955): “Th[is] contention [of bias] is without substance when

considered against the long-standing practice in deportation

proceedings, judicially approved in numerous decisions in the

federal courts, and against the special considerations applicable to deportation which the Congress may take into account

in exercising its particularly broad discretion in immigration

matters.” Id. at 311; see also United States v. GarciaMartinez, 228 F.3d 956, 960-63 (9th Cir. 2000). 

[18] Finally, Morales argues that he was denied due process

because he was not notified of the availability of judicial

review. We have never required such notice in the civil immigration context, and we find no reason to require it in the reinstatement context—where an alien’s rights and remedies are

severely limited. See Part III.C infra. In any event, petitioner

obviously got notice because he “filed a timely petition for

judicial review to this court. Again, no prejudice has been

shown.” Ochoa-Carrillo, 437 F.3d at 848. 

C. Morales also claims that a removal order may not constitutionally be reinstated if the underlying removal proceeding itself violated due process. We have, on several occasions,

expressed “serious[ ] doubt that the government’s new reinstatement procedure comports with the Due Process Clause.”

Castro-Cortez v. INS, 239 F.3d 1037, 1040 (9th Cir. 2001),

abrogated by Fernandez-Vargas, 126 S. Ct. at 2427 & n.5.17

17See also Perez-Gonzalez, 379 F.3d at 796 (addressing the harm “on

narrower grounds than due process”); Padilla, 334 F.3d at 924 (“[W]e still

need not decide whether the INS’s regulation offends due process . . . .”).

But see United States v. Luna-Madellaga, 315 F.3d 1224, 1226-27 (9th

Cir. 2003) (“[A]n alien who illegally reenters the United States while

under an order of removal has already received a full and fair hearing

. . . .”); Alvarenga-Villalobos v. Ashcroft, 271 F.3d 1169, 1173, 1174 (9th

Cir. 2001) (“[A]liens removable under § 241(a)(5) have already received

all of the process that is due under the Constitution.” “To preclude a second bite at the apple after an illegal reentry does not offend due process.”).

MORALES-IZQUIERDO v. GONZALES 1411
And, one of our cases lends direct support to Morales’ contention: “[T]he INS cannot reinstate a prior order of removal that

did not comport with due process.” Arreola-Arreola v. Ashcroft, 383 F.3d 956, 963 (9th Cir. 2004). 

[19] To the extent we so held in Arreola-Arreola, we revisit

that decision here and reverse field: Reinstatement of a prior

removal order—regardless of the process afforded in the

underlying order—does not offend due process because reinstatement of a prior order does not change the alien’s rights

or remedies. The only effect of the reinstatement order is to

cause Morales’ removal, thus denying him any benefits from

his latest violation of U.S. law, committed when he reentered

the United States without the Attorney General’s permission

in contravention of INA § 212(a)(9), 8 U.S.C. § 1182(a)(9).

The reinstatement order imposes no civil or criminal penalties, creates no new obstacles to attacking the validity of the

removal order, see, e.g., INA § 240(b)(5)(C)(ii), 8 U.S.C.

§ 1229a(b)(5)(C)(ii) (allowing reopening of a removal order

based on lack of notice), 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. 

In short, reinstatement of the removal order leaves Morales

in the same position as on the date of the original removal.

The Supreme Court noted this very point in FernandezVargas: 

While the [reinstatement] law looks back to a past

act in its application to “an alien [who] has reentered

. . . illegally,” 8 U.S.C. § 1231(a)(5), the provision

does not penalize an alien for reentry (criminal and

civil penalties do that); it establishes a process to

remove him “under the prior order at any time after

the reentry.” Ibid. . . . [T]he statute applies to stop an

indefinitely continuing violation that the alien him1412 MORALES-IZQUIERDO v. GONZALES
self could end at any time by voluntarily leaving the

country. 

126 S. Ct. at 2432 (second alteration in original). 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. Nor is the government required to expend vast resources on extraneous procedures before reinstating a removal order that has already been

finalized and executed. 

Or, to put it differently, an alien who respects our laws and

remains abroad after he has been removed should have no

fewer opportunities to challenge his removal order than one

who unlawfully reenters the country despite our government’s

concerted efforts to keep him out. If Morales has a legitimate

basis for challenging his prior removal order, he will be able

to pursue it after he leaves the country, just like every other

alien in his position. If he has no such basis, nothing in the

Due Process Clause gives him the right to manufacture for

himself a new opportunity to raise such a challenge. The contrary conclusion 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. It would also make a mockery of aliens who

do respect our laws and wait patiently outside our borders

seeking lawful admission. Nothing in the Constitution

requires such a perverse result. 

IV

[20] We conclude that a previously removed alien who

reenters the country illegally is not entitled to a hearing before

an immigration judge to determine whether to reinstate a prior

removal order. The reinstatement statute and its implementing

regulation comport with due process, and 8 C.F.R. § 241.8 is

a valid interpretation of the INA. 

MORALES-IZQUIERDO v. GONZALES 1413
[21] Morales has shown no violation of due process in the

conduct of his reinstatement proceeding. To the extent genuine issues of material fact exist with respect to his underlying

removal order, this “prior order . . . is not subject to being

reopened or reviewed” during the course of the reinstatement

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

PETITION DENIED. 

THOMAS, Circuit Judge, with whom PREGERSON, REINHARDT, and W. FLETCHER, Circuit Judges, join, dissenting: 

On January 15, 2003, Raul Morales-Izquierdo and his

United States citizen wife, Patricia Morales, attended a meeting at the INS’s Tacoma, Washington office. The Moraleses

expected to discuss the I-130 alien relative petition that Patricia had filed on March 1, 2001, to adjust her husband’s status

to that of a legal permanent resident. Instead, the INS served

on the couple both a denial of the petition for adjustment of

status and a notice of intent to reinstate a 1994 deportation

order against Raul Morales under INA § 241(a)(5). 

Morales has consistently and emphatically maintained that

the 1994 deportation order is invalid because he was never

given notice of the 1994 hearing at which he was ordered

deported in absentia. In a sworn statement, Morales claimed

never to have received the notice that was sent to his exgirlfriend’s house, explaining that someone else had signed to

indicate receipt of the notice. He has never been granted a

hearing at which he could present his case; the majority opinion assures that he never will be. 

This result would have been impossible under the regulations that governed reinstatement proceedings for nearly

forty-five years. Under the former 8 C.F.R. § 242.23, an alien

1414 MORALES-IZQUIERDO v. GONZALES
subject to a reinstatement order was entitled to a hearing

before an immigration judge, who was charged with determining the identity of the alien, whether the alien had previously been deported, and whether the alien illegally reentered

the United States. 8 C.F.R. § 242.23 (repealed 1997). At the

hearing before the immigration judge, the alien had the opportunity to contest the charges and evidence, present his or her

own evidence, and apply for relief from deportation. Id. The

alien was also afforded the right to appeal an adverse decision

to the Board of Immigration Appeals and ultimately to the

federal courts of appeal. Castro-Cortez v. INS, 239 F.3d 1037,

1044 (9th Cir. 2001). 

All of that changed in 1997, when the Attorney General

made a complete course reversal. Under the new regulation,

aliens were to be removed from the country without a hearing

or an opportunity to contest the charges, via reinstatement by

a low-level Department of Homeland Security employee who

served as both prosecutor and judge. 

The central question in this case is whether the Immigration

and Naturalization Act (“INA”) permits the Attorney General

to make these changes, eliminating longstanding procedural

protections. Because the INA unambiguously prohibits the

Attorney General from creating alternative procedures for any

inadmissibility or deportability determinations absent explicit

congressional permission and because the creation of lessprotective procedural mechanisms raises serious constitutional questions, I respectfully dissent from the majority’s

decision to uphold the Attorney General’s regulation.1

I

As the majority and I agree, the appropriate framework for

1Because I conclude that the regulation is ultra vires to the statute, I find

it unnecessary to reach the question of whether the regulation violates the

Due Process Clause. 

MORALES-IZQUIERDO v. GONZALES 1415
assessing the validity of 8 C.F.R. § 241.8 is dictated by Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.

837, 842-45 (1984). Under Chevron, we must consider first

“whether Congress has directly spoken to the precise question

at issue.” Id. at 842. “If Congress has done so, the inquiry is

at an end; the court ‘must give effect to the unambiguously

expressed intent of Congress.’ ” Food and Drug Administration v. Brown & Williamson Tobacco Corp., 529 U.S. 120,

132 (2000) (quoting Chevron, 467 U.S. at 843). 

In determining congressional intent, we not only examine

the precise statutory section in question but also analyze the

provision in the context of the governing statute as a whole,

presuming a congressional intent to create a “symmetrical and

coherent regulatory scheme.” Id. at 1301 (quoting Gustafson

v. Alloyd Co., 513 U.S. 561, 569 (1995)). We must also “be

guided to a degree by common sense as to the manner in

which Congress is likely to delegate a policy decision of [significant] economic and political magnitude to an administrative agency.” Id. If, after conducting such an analysis, we

conclude that Congress has not addressed the issue, we “must

respect the agency’s construction of the statute so long as it

is permissible.” Id. at 1300 (citing INS v. Aguirre-Aguirre,

526 U.S. 415, 424 (1999)). 

Ultimately, “the judiciary is the final authority” in interpreting statutes, and courts must employ all “traditional tools

of statutory construction” under Chevron step one to ascertain

whether Congress’s intent is “clear.” Chevron, 467 U.S. at

843 n.9. In this case, the text and structure of the INA are

clear; the statute unambiguously prohibits the Attorney General’s interpretation. But even if the statute were ambiguous,

the Attorney General’s interpretation would be precluded by

the canon of constitutional avoidance — unquestionably a

“traditional tool of statutory construction” to be used at Chevron step one — pursuant to which we must presume that Congress did not intend to permit any interpretation that, like the

Attorney General’s, raises serious constitutional questions. 

1416 MORALES-IZQUIERDO v. GONZALES
II

The intent of Congress could hardly be clearer. The text

and structure of the INA unambiguously require that inadmissibility and deportability determinations be made by an immigration judge pursuant to the procedural protections outlined

in INA § 240. Section 240 declares that the procedural mechanism it creates “shall be the sole and exclusive procedure for

determining” an alien’s removability, unless Congress has

“specified” an alternative procedure. INA § 240(a)(3); 8

U.S.C. § 1229(a)(3). This language leaves no room for quarreling. Unless Congress explicitly creates a new procedural

mechanism, the § 240 procedure must be followed in any and

all “removal proceedings.” INA § 240(a)(1); 8 U.S.C.

§ 1229(a)(1). Because reinstatement proceedings determine

the admissibility of aliens and because the reinstatement provision contains no explicit procedural exception, it is clear

that § 241(a)(5) proceedings must employ the required § 240

mechanism. 

Although the statute’s plain language should settle the

question, it is worth noting that this construction is buttressed

by the INA’s inclusion of several provisions that do explicitly

create or authorize alternative procedural mechanisms, demonstrating that Congress knew how to express an intention to

deviate from § 240 and failed to do so in § 241(a)(5). See,

e.g., INA § 235(b)(1) (expedited removal for arriving and certain other aliens); INA § 235(c) (expedited removal for terrorists); INA § 238 (administrative removal for nonpermanent

residents convicted of an aggravated felony). The existence of

these explicit provisions has considerable significance in discerning Congress’s intent. See Valderrama-Fonseca v. INS,

116 F.3d 853, 856 & n. 6 (9th Cir.1997) (noting in relation to

IIRIRA § 348 that “it is apparent that Congress knew how to

make provisions of IIRIRA applicable to pending proceedings

when it wanted to”). 

In short, § 240 requires an explicit exemption before expedited procedures may be used, and § 241(a)(5) contains no

MORALES-IZQUIERDO v. GONZALES 1417
such exemption. Thus, because 8 C.F.R. § 241.8 goes beyond

the authority of the INA by eliminating the express and exclusive authority of immigration judges to determine whether an

alien’s prior deportation order should be reinstated under INA

§ 241(a)(5), the regulation is ultra vires to INA § 240(a). See

Romero v. INS, 39 F.3d 977, 979-81 (9th Cir. 1994). 

Despite these unambiguous statutory requirements, the

majority concludes that reinstatement proceedings need not

follow § 240 strictures. The majority holds that the reinstatement provision authorizes the Attorney General’s lessprotective procedural mechanism just by implying a preference for shorter proceedings. But this analysis violates the

very statute it purports to interpret. The INA does not tolerate

implied authorizations; it requires Congress to “specify” an

intention to deviate from § 240 guarantees. INA § 240(a)(3)

(“Unless otherwise specified in this Act, a proceeding under

this section shall be the sole and exclusive procedure” for

removal.) (emphasis added). 

The majority, of course, does not rest entirely on its assertion of implied repeal; it also argues that reinstatement proceedings are not “removal proceedings” and that they

therefore do not fall within the ambit of § 240. However,

reading the reinstatement provision both on its face and in its

context, “with a view to [its] place in the overall statutory

scheme,” Davis v. Michigan Dept. of Treasury, 489 U.S. 803,

809 (1989), it is evident that § 241(a)(5) is not an alternative

to § 240; rather, a § 241(a)(5) reinstatement order may issue

only after a § 240 determination has been made that the alien

is removable. The reinstatement provision does nothing to

change the fact that illegally reentering aliens fall squarely

within the category of “removable” aliens entitled to § 240

procedural guarantees. Section 240(e)(2) defines “removable”

aliens as all those that are “inadmissible under section 212”

or “deportable under section 237.” One of the enumerated

grounds for inadmissibility under § 212 is illegal reentry; it

covers aliens who have “been ordered removed” and have

1418 MORALES-IZQUIERDO v. GONZALES
“enter[ed] or attempt[ed] to reenter the United States without

being admitted.”

2

 INA § 212(a)(9)(C)(i); 8 U.S.C. § 1182(a)

(9)(C)(i). By enumerating illegal reentry as a ground for inadmissibility and by specifying that all inadmissible aliens are

“removable” within the meaning of § 240, the INA expressly

provides for the removal of illegally reentering aliens pursuant to ordinary § 240 procedures. 

Importantly, § 212(a)(9)(C)(i) also specifically anticipates

reentry after a formal removal order, meaning that the provision covers exactly the same group of aliens that the reinstatement provision covers. It is therefore simply not true that

“reinstateable” aliens constitute a separate category from “removable” aliens. The so-called “first-instance” removal provisions, namely §§ 240 and 212, expressly cover the same

aliens that the reinstatement provision covers. 

This dual coverage need not render either provision surplusage nor need it imply that an alien subject to reinstatement is entitled to precisely the same rights as an alien facing

removal for the first time. As many courts have made clear,

the reinstatement provision strips illegally reentering aliens of

discrete rights that are granted to first time removable aliens,

including the rights to “relief, reopening, [and] review.” De

Sandoval v. U.S. Att’y Gen., 440 F.3d 1276, 1281 (11th Cir.

2006). The majority is also correct to note that § 241(a)(5)

narrows the substantive inquiry that must be made prior to

determining the alien’s status. Additionally, the reinstatement

provision creates a new kind of order to be entered at the end

of a § 240 proceeding: an immediately-executing reinstate2

Illegally reentering aliens are also “deportable” under INA § 237(a)(1);

8 U.S.C. § 1226a(a)(1), which includes aliens that were “inadmissible” at

the time of entry and those that are “present in the United States in violation of” the INA. Under § 212(a)(9), all reentering aliens are “inadmissible,” and under INA § 276; 8 U.S.C. § 1326(a), which makes it a crime

to reenter the United States after receiving a formal order of deportation,

exclusion, or removal, all reentering aliens are “present in the United

States in violation of” the INA. 

MORALES-IZQUIERDO v. GONZALES 1419
ment order. The reinstatement provision, therefore, has real

effects on the rights of reentering aliens and on the consequences of a reinstatement determination. But it does not —

and cannot be read to — authorize abrogation of the procedural guarantees mandated by § 240. The rights-stripping provisions in § 241(a)(5) do not conflict with any § 240

procedures; the reinstatement provision can be given full

effect without undermining § 240 exclusivity. 

In short, the only way to give effect to both §§ 240 and

241(a)(5), especially taking into consideration the express

inclusion of reentering aliens in the category of “removable”

aliens, is to require that a reinstatement order issue only after

a full § 240 hearing before an immigration judge. See

Bowsher v. Merck & Co., Inc., 460 U.S. 824, 833 (1983)

(restating and reaffirming “the settled principle of statutory

construction that we must give effect, if possible, to every

word of the statute”); FTC v. Mandel Brothers, Inc., 359 U.S.

385, 389 (1959) (holding that statutes should be interpreted so

as to “fit, if possible, all parts into an harmonious whole”). 

The majority finds additional justification for reading

§ 241(a)(5) as authorizing a deviation from § 240 requirements in the fact that the reinstatement provision mentions the

Attorney General rather than immigration judges, allegedly

indicating a differential delegation of discretion. However, the

Attorney General is merely a titular decision-maker, an example of statutory synecdoche, using the head of the Department

of Justice to refer to all of its employees. Countless provisions

of the INA refer to determinations of “the Attorney General”

even when those determinations will actually be made by

lower-level employees and even when those determinations

must actually be made by immigration judges pursuant to

§ 240 procedures. For example, the statutory provision outlining grounds of inadmissibility, INA § 212, contains several

references to findings of the Attorney General even though

§ 240 unquestionably requires that immigration judges make

inadmissibility determinations. See, e.g., INA § 212(a)(2)(C)

1420 MORALES-IZQUIERDO v. GONZALES
(deeming inadmissible any alien whom “the Attorney General

knows or has reason to believe” is a drug trafficker or a drug

trafficker’s spouse); INA § 212(a)(2)(H)(i) (any alien whom

“the Attorney General knows or has reason to believe” is a

human trafficker); § 212(a)(2)(I) (any alien whom “the Attorney General knows, or has reason to believe” is a money launderer); § 212(a)(3)(A) (any alien whom “the Attorney General

knows, or has reasonable ground to believe, seeks to enter the

United States” as a spy); § 212(a)(3)(B)(i)(II) (any alien

whom “the Attorney General . . . knows, or has reasonable

ground to believe” is an active terrorist); § 212(a)(4)(A) (any

alien who “in the opinion of the Attorney General at the time

of application for admission or adjustment of status” is likely

to become a “public charge”). These provisions might authorize the Attorney General to promulgate regulations clarifying

the burden of proof or the evidence that is admissible, but

they certainly do not affect the § 240 requirement that inadmissibility determinations be made by immigration judges. 

The majority additionally claims that the mention of immigration judges in § 240 “suggests Congress knew how to mandate a hearing before an immigration judge, but chose not to

do so in the context of reinstatement orders.” Maj. Op. at

1401 (quoting De Sandoval, 440 F.3d at 1281). This argument

begs the question. The point is that Congress did not believe

itself to be mandating or authorizing any kind of hearing

whatsoever; section 241(a)(5) is a substantive provision that

leaves § 240 hearing requirements entirely intact. 

Although the majority is right to assert that § 241(a)(5)

indicates a desire to shorten proceedings for illegally reentering aliens, it is wrong to conclude that the reinstatement provision authorizes a deviation from § 240 procedural

guarantees. Section 241(a)(5) streamlines reinstatement proceedings by stripping reentering aliens of a discrete set of

rights, not by authorizing an expedited procedural mechanism. Considering the text of the reinstatement provision and

its context in the statutory scheme, it is clear that § 241(a)(5)

MORALES-IZQUIERDO v. GONZALES 1421
authorizes reinstatement orders to issue only after an immigration judge makes a § 240 determination that the alien is

“removable.” 

In sum, Congress has expressed its unambiguous intent that

the procedural mechanisms it created in § 240 “shall be the

sole and exclusive procedure for determining” an alien’s

removability. Because the Attorney General’s regulation

establishes procedures that conflict with the express provisions of the INA, it cannot stand. See Bona v. Gonzales, 425

F.3d 663, 670-71 (9th Cir. 2005) (holding that a regulation

that is contrary to statute is invalid).

III

Even if the text and structure of the INA were sufficiently

ambiguous to leave some discretion to the Attorney General,

the canon of constitutional avoidance would preclude the

interpretation that the Attorney General chose. 

A

The avoidance canon instructs courts to reject those “plausible statutory constructions” that “would raise a multitude of

constitutional problems,” Clark v. Martinez, 543 U.S. 371,

380-81 (2005), as long as an alternative construction exists

that is “fairly possible” and less troubling, Crowell v. Benson,

285 U.S. 22, 62 (1932). The canon rests not only on courts’

desire “to avoid the decision of constitutional questions” but

also on a “reasonable presumption that Congress did not

intend the alternative which raises constitutional doubts.”

Clark, 543 U.S. at 381. Avoidance, then, is a “means of giving effect to congressional intent,” id. at 381-82, resting on an

assumption that, between two plausible statutory constructions, Congress meant the one that does not approach the

boundaries of “constitutionally protected liberties,” DeBartolo, 485 U.S. at 575. In short, the avoidance canon rests on

1422 MORALES-IZQUIERDO v. GONZALES
a judicial presumption that Congress always intends to steer

clear of constitutional boundaries. 

For purposes of this case, two important conclusions flow

from the avoidance canon’s rationales: first, the canon is

highly relevant at Chevron step one, and second, the canon

does not ultimately depend on the merits of implicated constitutional claims. 

Because the avoidance canon centers on a presumption

about congressional intent, it certainly pertains to the step one

determination of whether Congress intended to preclude the

agency’s interpretation. See Brown & Williamson, 529 U.S. at

126 (denying deference at step one, not because the statute

was entirely clear, but because “Congress ha[d] clearly precluded” the agency’s construction); MCI Telecommunications

Corp. v. American Telephone & Telegraph Co., 512 U.S. 218,

229 (1994) (holding that an agency’s interpretation should be

denied deference at step one, even in the face of some

ambiguity, if the proffered interpretation “goes beyond the

meaning that the statute can bear”); Edward J. DeBartolo

Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485

U.S. 568, 574 (1988) (holding that an interpretation should be

denied deference at step one if it is “clearly contrary to the

intent of Congress”); INS v. Cardoza-Fonseca, 480 U.S. 421,

448 n.31 (1987) (denying deference at step one even while

noting that the provision contained significant ambiguities, on

the ground that the statute clearly precluded the agency’s

interpretation). 

The avoidance canon, thus, is properly applied at step one

of the Chevron analysis. While the majority may be correct

that the avoidance canon cannot be used to render an agency’s

interpretation “unreasonable” at Chevron step two, the canon

is unquestionably a “traditional tool of statutory interpretation” that may and should be used to determine whether Congress intended to preclude the agency’s chosen interpretation.

See, e.g., Solid Waste Agency of N. Cook County v. U.S. Army

MORALES-IZQUIERDO v. GONZALES 1423
Corps of Eng’rs, 531 U.S. 159, 172-73 (2001) (denying deference because the agency’s interpretation “needlessly” raised

serious “constitutional issues” and because the Court assumed

“that Congress does not casually authorize administrative

agencies to interpret a statute to push the limit of congressional authority”); DeBartolo, 485 U.S. at 575 (rejecting an

agency’s interpretation at step one because it raised “serious

constitutional problems”). See also Lattab v. Ashcroft, 384

F.3d 8, 20n.5 (1st Cir. 2004) (specifically reserving the question of whether “the rule of avoidance” would “lead to a different statutory construction” if it were applied “under the

first step of Chevron”). 

The second conclusion to flow from the avoidance canon’s

rationales is that its application does not depend on this or any

court’s conclusions as to the merits of implicated constitutional claims. Clark, 543 U.S. at 381 (“The canon is not a

method of adjudicating constitutional questions by other

means.”) (citing Adrian Vermeule, Saving Constructions, 85

Geo. L.J. 1945, 1960-61 (1997) (listing cases in which the

Supreme Court used the canon to avoid a constitutional question only later to decide that the avoided application was not

unconstitutional)). Even if every constitutional challenge to

arise under the Attorney General’s regulation were ultimately

decided against the alien, the regulation should be rejected

under the avoidance canon if it approaches “the constitutional

danger zone” without a clear statement from Congress that it

intended to do so. Vermeule, 85 Geo. L.J. at 1960. 

B

That the reinstatement regulation does, in fact, approach the

“constitutional danger zone” is beyond cavil. We have noted

specifically on more than one occasion that 8 C.F.R. § 241.8

“raises very serious due process concerns[.]” Castro-Cortez v.

INS, 239 F.3d 1037, 1048 (9th Cir. 2001), abrogated on other

grounds by Fernandez-Vargas v. Gonzales, 126 S.Ct. 2422,

2427 & n.5 (2006). See also Aguilar-Garcia v. Ridge, 90

1424 MORALES-IZQUIERDO v. GONZALES
Fed.Appx. 220, 220 (9th Cir. 2004); Arreola-Arreola v. Ashcroft, 383 F.3d 956, 959 (9th Cir. 2004). 

And several of our sister circuits have expressed similar

doubts as to the sufficiency of process afforded. See Lattab,

384 F.3d at 21 n.6 (noting the seriousness of the constitutional

claim given that the regulation “offers virtually no procedural

protections”); United States v. Charleswell, 456 F.3d 347, 356

n.10 (3d Cir. 2006) (noting that constitutional doubts relating

to the regulation “continue to cause a significant amount of

consternation”); Bejjani v. INS, 271 F.3d 670, 687 (6th Cir.

2002) (construing the regulation as having no retroactive

effect in part “to avoid a constitutional question”), abrogated

on other grounds by Fernandez-Vargas, 126 S.Ct. at 2427 &

n.5; Gomez-Chavez v. Perryman, 308 F.3d 796, 802 (7th Cir.

2002) (reserving the question of “what kind of procedures”

would be “necessary” for an alien who challenges the factual

basis for reinstatement); Alvarez-Portillo v. Ashcroft, 280

F.3d 858, 867 (8th Cir. 2002) (noting that additional procedures might be due for an alien who challenges the applicability of reinstatement), abrogated on other grounds by

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

When we examine the reinstatement procedures more

closely, the constitutional concerns expressed by our court

and others become apparent. It is well-settled that the due process clause of the Fifth Amendment applies to aliens in

removal proceedings. Arreola, 383 F.3d at 962; United States

v. Nicholas-Armenta, 763 F.2d 1089, 1090 (9th Cir. 1985).

Due process requires “a full and fair hearing of [the alien’s]

claims and a reasonable opportunity to present evidence on

his behalf,” Salgado-Diaz v. Ashcroft, 395 F.3d 1158, 1162

(9th Cir. 2005) (internal quotation marks omitted). Here, both

on a facial and as-applied examination, the reinstatement process is well within the constitutional danger zone. 

1

First, purely on a facial analysis, the reinstatement process

itself approaches the “constitutional danger zone” because it

MORALES-IZQUIERDO v. GONZALES 1425
does not provide any opportunity for the alien to challenge the

legality of a prior removal order. The inquiry is confined to

three determinations: (1) the identity of the alien, (2) that the

alien has previously been deported, and (3) that the alien illegally reentered the United States. 8 C.F.R. § 241.8. Thus, an

alien that previously has been removed in absentia and without due process has no means of raising his due process claim.

Even as to the three factual determinations to be made, the

Attorney General’s reinstatement procedure affords insufficient procedural protections, clearly approaching — if not

breaching — the constitutional danger zone. The reinstatement procedure does not provide adequate means to contest

the predicates to reinstatement. As we observed in CastroCortez, “an alien cannot receive a full and fair hearing unless

he has the right to place information into the administrative

record.” 239 F.3d at 1049. Under the regulation, however, the

alien is afforded the ability only to make “a written or oral

statement contesting the determination” to the officer who has

already decided to reinstate the order. 8 C.F.R. § 241.8(a)(3).

Thus, if an alien wishes to contest the fact that he was previously deported or that his reentry was illegal, he is not permitted to do so with any extrinsic evidence. Under the

reinstatement regulation, the alien has no right to introduce

documents or other evidence to be considered by the officer;

the officer alone determines what will constitute the administrative record. Furthermore, the alien has no right to a hearing

at which he or she could call witnesses to testify, and the alien

is not afforded the right to review the immigration file upon

which the charges are based or to confront the evidence

assembled by the government in support of reinstatement. 

The lack of due process in practice is illustrated by the reinstatement cases that have found their way to the courts of

appeal. In the typical reinstatement case considered by our

circuit and our sister circuits, the alien has married a United

States citizen and makes an appointment with the agency to

discuss adjustment of status or an extension of a previously

1426 MORALES-IZQUIERDO v. GONZALES
granted work authorization. During the discussion, the officer

serves a Notice to Reinstate Prior Order and asks the alien to

fill out the form, which includes a checkbox to indicate

whether the alien wishes to make a statement. If the box is

checked “no,” that is the end of the matter, and the reinstatement is effected without further ado. If the box is checked

“yes,” either the alien writes out a statement, or the officer

asks questions and writes down the answers. Then the reinstatement is effected, and the alien usually is immediately

taken into custody.3 This procedure cannot be said to comport

3

See, e.g., Lino v. Gonzales, 467 F.3d 1077 (7th Cir. 2006) (alien married to U.S. citizen with three U.S. citizen daughters served with reinstatement notice during interview concerning adjustment of status); FernandezVargas v. Ashcroft, 394 F.3d 881, 883 (10th Cir. 2005) (alien married to

U.S. citizen served with reinstatement notice during interview concerning

adjustment of status and taken into custody); Berrum-Garcia v. Comfort,

390 F.3d 1158, 1161(10th Cir. 2004) (alien with U.S. citizen wife served

with notice of reinstatement of removal during interview concerning

adjustment of status); Lattab, 384 F.3d at 12 (alien married to U.S. citizen

with adjustment of status proceedings pending served with reinstatement

notice during visit to agency office to renew employment authorization

and taken into custody); Perez-Gonzalez v. Ashcroft, 379 F.3d 783, 785-86

(9th Cir 2004) (alien married to U.S. citizen served with reinstatement

notice and taken into custody during interview about petition to reapply

for admission as predicate to adjustment of status); Flores v. Ashcroft, 354

F.3d 727, 729 (8th Cir. 2003) (alien with U.S. citizen husband served with

reinstatement notice and taken into custody during adjustment of status

interview); Padilla v. Ashcroft, 334 F.3d 921, 923 (9th Cir. 2003) (alien

married to U.S. citizen served with reinstatement notice during interview

concerning adjustment of status and taken into custody); Gomez-Chavez

v. Perryman, 308 F.3d 796, 799 (7th Cir. 2002) (alien married to U.S. citizen with work authorization served with notice to reinstate during interview concerning adjustment of status); Gallo-Alverez v. Ashcroft, 266 F.3d

1123, 1127 (9th Cir. 2001) (alien married to U.S. citizen returns to INS

office at suggestion of District Director to renew work authorization,

served with Notice to Reinstate Prior Order and taken into custody);

Castro-Cortez, 239 F.3d at 1040 (alien [Castro-Cortez] married to U.S.

citizen served with reinstatement notice during interview concerning

adjustment of status and taken into custody); Id. at 1042 (alien [FunesQuevado] married to a U.S. citizen served with reinstatement notice during interview concerning adjustment of status and taken into custody); Id.

MORALES-IZQUIERDO v. GONZALES 1427
with the requirements of notice and a hearing before a person

is deprived of liberty. Mathews v. Eldridge, 424 U.S. 319, 333

(1976). The very real and practical consequence of the Attorney General’s decision is that families in the United States are

broken apart, with the father or mother summarily removed

from the country without any opportunity to contest the government’s charges. 

In short, the regulatory procedure is so streamlined that it

deprives reentering aliens of any meaningful opportunity to

raise potentially viable legal, constitutional, or factual challenges to their removability. Based on these observations, it

is clear that the reinstatement process implemented by 8

C.F.R. § 241.8 falls within the constitutional danger zone. 

2

When one specifically examines whether due process has

been afforded to Morales in this case, one can only conclude

that the procedures as applied to him place him within the

constitutional danger zone. 

First, the due process problems inherent in the reinstatement process affected Morales. He appeared at his interview

for adjustment of status. Without prior notice, he was presented with a Notice of Intent to Reinstate Prior Order. He

at 1042-43 (alien [Rueda) married to a U.S. citizen served with reinstatement notice during interview concerning adjustment of status and

arrested); Id. at 1043 (alien [Salinas-Sandoval] married to U.S. citizen

served with reinstatement notice during visit to agency to inquire about

progress on adjustment of status request); see also Wilson v. Gonzales,

2006 WL 3541717 (2d Cir. 2006) (alien business owner married to U.S.

citizen served with reinstatement notice during adjustment of status proceedings); Faiz-Mohammad v. Ashcroft, 395 F.3d 799, 801 (7th Cir. 2005)

(reinstatement notice served during adjustment of status proceedings);

Arevalo v. Ashcroft, 344 F.3d 1, 6 (1st Cir. 2003) (alien with U.S. citizen

children served with reinstatement order during sixth year of adjustment

of status proceedings). 

1428 MORALES-IZQUIERDO v. GONZALES
was not afforded a lawyer. Although he stated that he did not

read or write English and needed to have things explained in

Spanish in words he could understand, he was not afforded an

interpreter. According to the agent’s notes, Morales stated that

he had never been before an immigration judge, that he was

never informed that he was deported in absentia, and that the

signature on the notice card was not his. He was not afforded

the opportunity to examine the immigration file that served as

the basis for the reinstatement. Rather, despite the fact that he

contested the factual predicate for a reinstatement order to

issue, he was immediately arrested and taken into custody

after he finished answering the officer’s questions. Thus, in

his case, the facial due process concerns with the reinstatement process were not merely theoretical; he experienced

them. He was not given the opportunity to contest the factual

basis for the reinstatement, even though he vigorously disputed it. The procedures utilized in Morales’ reinstatement

hearing place him within the constitutional danger zone. 

Second, because he was deported in absentia, Morales has

never seen an immigration judge at all. He never had a full

hearing on his prior deportation charges. Therefore, his situation is different from that involved in Arreola-Arreola, in

which we concluded that the alien had received due process

in his prior deportation hearing. 

If Morales’ allegations are true — that he never received

notice of the deportation hearing at which he was deported in

absentia — then there can be no question that he has been

denied a full and fair hearing of his claims; he was, in fact,

denied any hearing at all. See Colmenar, 210 F.3d at 971

(holding that an asylum petitioner was denied a full and fair

hearing and a reasonable opportunity to present evidence on

his behalf where the IJ “acted as a partisan adjudicator” during petitioner’s hearing). Thus, the procedures used in the

MORALES-IZQUIERDO v. GONZALES 1429
underlying deportation hearing independently place Morales

within the constitutional danger zone.4

3

Because the reinstatement procedures fall within the constitutional danger zone, both facially and as applied to Morales,

the doctrine of constitutional avoidance requires a presumption that Congress intended to afford Morales a full § 240

hearing before an immigration judge. This statutory construction, which is consistent with the plain words of § 240 and

with the overall structure of the INA, necessarily means that

the reinstatement regulation is ultra vires to the statute and

must be invalidated. 

C

Rather than reaching the question of whether there has been

a deprivation of due process, the majority opinion contends

that any such violation can be addressed and remedied by the

court on a petition for habeas corpus, filed by the alien following removal. This contention, however, cannot be squared

with the Real ID Act of 2005’s limitation on the availability

of habeas review.5 In fact, the majority’s suggestion highlights

4

It is, of course, unnecessary in avoidance analysis to determine whether

Morales has demonstrated prejudice. Because there is at least a serious

possibility that the reinstatement regulations violated Morales’s due process rights, those regulations are inconsistent with presumed congressional

intent regardless of whether Morales has shown a remediable constitutional violation in his case. Nevertheless, it is worth noting that Morales

has shown a significant likelihood of prejudice by contesting both the constitutionality of the initial removal order and the factual basis of the reinstatement order. His inability to present and develop those claims before

an immigration judge may well have resulted in an erroneous deportation.

5The majority opinion does not specify that it has habeas relief in mind,

but a writ of habeas corpus is the only imaginable remedy that an alien

could seek after removal from the country. By the time that a removal

order has been executed, motions to reopen and petitions for review would

1430 MORALES-IZQUIERDO v. GONZALES
a second “constitutional danger zone” that the reinstatement

provision approaches: the Suspension Clause. 

Section 106(a) of the Real ID Act, Pub. L. No. 109-13

(May 11, 2005), amending 8 U.S.C. § 1252(D)(5), provides:

Notwithstanding any other provision of law, . . . or

any other habeas corpus provision, . . . a petition for

review filed with an appropriate court of appeals in

accordance with this section shall be the sole and

exclusive means for judicial review of an order of

removal entered or issued under any provision of

[the INA]. 

“The [Real ID Act] eliminated habeas jurisdiction . . . over

final orders of deportation, exclusion, or removal.” AlvarezBarajas v. Gonzales, 418 F.3d 1050, 1052 (9th Cir. 2005).

Without § 240 procedural protections during the reinstatement

proceeding, this lack of post-removal habeas review raises

serious Suspension Clause concerns. The Attorney General’s

regulation, thus, approaches a second and independent “constitutional danger zone” by denying reinstateable aliens any

constitutionally sufficient access to relief from detention and

deportation. 

When there are essential disputed factual issues, the only

constitutionally adequate remedy is a “full and fair hearing,”

which includes “a reasonable opportunity [for the alien] to

present evidence on his behalf.” Ibarra-Flores v. Gonzales,

439 F.3d 614, 620 (9th Cir. 2006) (internal quotation marks

omitted). Because the Real ID Act vests exclusive habeas corno longer be available. Furthermore, neither a motion to reopen nor a petition for review would allow litigation of a fact-based (or as-applied) substantive constitutional challenge since the agency may not litigate such

challenges and the appellate courts may not conduct evidentiary hearings.

A removed alien, thus, has absolutely no means of raising an as-applied

constitutional challenge to his deportation, particularly after REAL-ID. 

MORALES-IZQUIERDO v. GONZALES 1431
pus jurisdiction over final orders of removal in the courts of

appeal, the statute necessarily deprives the alien of a contested

evidentiary hearing with a resolution that is later subject to

appellate review based on a complete record. Courts of appeal

are not trial courts. Tippitt v. Reliance Standard Life Ins. Co.,

457 F.3d 1227, 1237 (11th Cir. 2006) (“[I]t is not the role of

appellate courts to make findings of fact.”); see also Icicle

Seafoods, Inc. v. Worthington, 475 U.S. 709, 714 (1986) (noting that it was improper for a court of appeals to make “factual findings on its own”). In short, under the Real ID Act,

evidentiary hearings in habeas corpus review of final orders

of removal are eliminated. Thus, without a hearing before an

IJ, Morales will have no opportunity to litigate the contested

questions of fact. Even if habeas review were afforded in the

appellate courts, it would not be constitutionally sufficient

because it would not include an evidentiary hearing at which

Morales could participate. 

In addition, even if a full post-removal evidentiary hearing

were permitted, Morales would be unable to attend and present live testimony without committing the criminal act of

reentering the United States after removal, in violation 8

U.S.C. § 1326(a). 

In short, the theoretical existence of a post-removal habeas

corpus remedy does not provide an opportunity for a full and

fair hearing of Morales’s claims before a neutral fact-finder.

Morales will never have a hearing on his claims. The only

method of avoiding this constitutionally problematic result is

to enforce the proper construction of the statute, requiring that

reinstatement proceedings be governed by § 240 procedures.

D

Given all of these considerations, even if the statutory language were susceptible to another interpretation, the canon of

constitutional avoidance would require us to construe the statute to avoid these many constitutional concerns, interpreting

1432 MORALES-IZQUIERDO v. GONZALES
it instead as requiring that § 240 procedures be applicable to

reinstatement proceedings. That construction is at least “fairly

possible,” Crowell, 285 U.S. at 62, even if not textually and

structurally required, and that construction would avoid the

plethora of due process and Suspension Clause problems that

are inherent in the Attorney General’s regulation. 

IV

Congress could hardly have been more clear. The INA

unambiguously requires that inadmissibility and deportability

determinations be made by an immigration judge pursuant to

the procedural protections outlined in INA § 240. Lest there

be any doubt, application of the traditional rules of statutory

construction, including the canon of constitutional avoidance,

dictate the same conclusion; we should not lightly assume that

Congress intended to authorize the Attorney General’s abrogation of so many aliens’ procedural rights. The Attorney

General’s action in stripping away the procedural protections

that had been in place for nearly forty-five years is in direct

conflict with the statute and cannot stand. 

For those reasons, I respectfully dissent.

MORALES-IZQUIERDO v. GONZALES 1433