NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MIGUEL PACHECO-MIRANDA, 

Petitioner, 

 v. 

JEFFERSON B. SESSIONS III, Attorney 

General, 

Respondent.

No. 14-70296 

Agency No. A077-395-812 

MEMORANDUM*

On Petition for Review of a Decision of the

Department of Homeland Security

Argued and Submitted July 10, 2017

Portland, Oregon

Before: WATFORD and OWENS, Circuit Judges, and CHHABRIA,** District 

Judge.

Challenges to the reinstatement of a prior removal order come in various 

forms. They may directly attack the reinstatement decision, in which case 

appellate review is limited to the factual predicates for reinstatement as defined in 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Vince Chhabria, United States District Judge for the 

Northern District of California, sitting by designation.

FILED

AUG 11 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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regulation. Garcia de Rincon v. Dep’t of Homeland Sec., 539 F.3d 1133, 1137 (9th 

Cir. 2008); see also 8 C.F.R. § 241.8(a). They may collaterally attack the 

underlying removal order, in which case appellate review is further constrained. 

See Villa-Anguiano v. Holder, 727 F.3d 873, 877-78 (9th Cir. 2013); Garcia de 

Rincon, 539 F.3d at 1139. Or they may attack the process by which the 

reinstatement decision was reached. See Morales de Soto v. Lynch, 824 F.3d 822, 

825 (9th Cir. 2016). In this third category of cases, the petitioner is not seeking a 

different outcome on the merits of reinstatement. He is instead seeking a revised 

process for evaluating the merits, in the hope that the Department of Homeland 

Security (“DHS”) might, on remand, exercise its discretion differently – either by 

referring the petitioner to a formal removal hearing before an immigration judge, 

or by declining to institute proceedings entirely. See, e.g., Villa-Anguiano, 727 

F.3d at 878-79, 882.

Miguel Pacheco-Miranda, a Mexican national, has filed a petition for review 

that falls into this third category. He does not challenge the factual predicates

supporting his January 29, 2014 reinstatement decision. Nor does he challenge his 

underlying 1998 removal order. Instead, he argues that due process required DHS 

to take into account the possibility that his presence in federal custody was the 

product of a traffic stop by a local police officer that was prolonged to investigate 

his immigration status – conduct so clearly contrary to Ninth Circuit precedent that 
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it constituted an “egregious” Fourth Amendment violation. See, e.g., Melendres v. 

Arpaio, 695 F.3d 990, 1001 (9th Cir. 2012). As the theory goes, because an 

egregious Fourth Amendment violation would affect ordinary removal proceedings 

before an immigration judge, it might also alter DHS’s thinking on whether to 

pursue reinstatement of a prior removal order, even if the three factual predicates 

for reinstatement – identity, prior removal, and unlawful reentry – are undisputed. 

For this proposition, Pacheco-Miranda invokes our decision in Villa-Anguiano,

where we remanded a reinstatement decision on due process grounds. 727 F.3d at 

881 (“Due process . . . entitles an unlawfully present alien to consideration of 

issues relevant to the exercise of an immigration officer’s discretion.”).

Pacheco-Miranda appears to be right on at least one point. Based on the 

admittedly limited record before us, it appears Pacheco-Miranda came into the 

custody of federal immigration officials through the unconstitutional conduct of an 

officer of the Sidney Police Department. The apparent Fourth Amendment 

violation may also have been “egregious” as this Court has defined that term. See 

Orhorhaghe v. I.N.S., 38 F.3d 488, 493 (9th Cir. 1994). And DHS officials may 

even have aided in the constitutional violation. However, even assuming an 

egregious Fourth Amendment violation, Villa-Anguiano does not require a remand

in this case. 

In Villa-Anguiano, DHS failed to account for a district court decision calling 
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into question the validity of the petitioner’s underlying removal order. VillaAnguiano, 727 F.3d at 876-77. That error prevented DHS from evaluating the 

factual predicates for removal with an accurate understanding of the relevant 

evidence, and deprived the petitioner of a meaningful opportunity to make a 

statement on his behalf. Id. at 880-81. We therefore concluded that remand was 

necessary to give full effect to the regulation governing reinstatement. Id. at 881 

(“For the requirements of [the reinstatement regulation] to function as the requisite 

‘procedural safeguards’ of the alien’s right to due process in the context of 

streamlined proceedings, they must apply at the relevant time.” (citation omitted)); 

see also Ponta-Garcia v. Attorney Gen. of U.S., 557 F.3d 158, 165 (3d Cir. 2009).

This case does not present a similar problem. Pacheco-Miranda has not 

connected the apparent Fourth Amendment violation to the decision to reinstate 

except in the most atmospheric sense. He does not claim that the Fourth 

Amendment violation calls into question any of the factual predicates for 

reinstatement.1 He does not claim that the Fourth Amendment violation somehow 

denied him an opportunity to make a statement on his behalf. And although his 

opening brief draws an extended analogy to the use of the exclusionary rule in

ordinary removal proceedings, he does not seek to exclude evidence of his 

 

1 The government conceded at oral argument that a Fourth Amendment violation 

calling into question a factual predicate for reinstatement would require a different 

result.
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statements to DHS. See also United States v. Ortiz-Hernandez, 427 F.3d 567, 577 

(9th Cir. 2005). Nothing about Pacheco-Miranda’s Fourth Amendment violation 

bears on the reinstatement process that this Court has already declared 

constitutionally sufficient on its face. See Morales-Izquierdo v. Gonzales, 486 

F.3d 484, 496 (9th Cir. 2007) (en banc). Due process therefore does not require a 

remand.2 Pacheco-Miranda may well be able to invoke the alleged Fourth 

Amendment violation in a section 1983 action against the officers responsible for 

violating his constitutional rights. But he may not invoke it to obtain 

reconsideration of the reinstatement decision.

PETITION FOR REVIEW DENIED.

 

2 That DHS has issued guidance that may call for the exercise of prosecutorial 

discretion in cases such as this does not affect the analysis. DHS’s guidance does 

not create substantive rights. James v. U.S. Parole Comm’n, 159 F.3d 1200, 1206 

(9th Cir. 1998). And while it is unclear what value the government sees in 

reinstating removal against a man with three U.S.-citizen children, no criminal 

record (notwithstanding his illegal reentry), and a possible path to adjustment of 

status, this Court lacks jurisdiction to review DHS’s decision to initiate 

reinstatement proceedings in lieu of some lesser alternative. 8 U.S.C. § 1252(g).