### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-60677

ELIGIO VALDIVIEZ-HERNANDEZ, also known as Pablo Hernandez, also known as Al Hernandez, also known as Pable Hernandez,

Petitioner

v. ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the Department of Homeland Security

Before JOLLY, DeMOSS, and SOUTHWICK, Circuit Judges. PER CURIAM: The original opinion in this case w as issued by the panel on September 26, 2013. We GRANT the petition for rehearing. We withdraw o ur p revious opinion and substitute the following. Petitioner Eligio Valdiviez-Hernandez seeks r e view of the Department of Homeland Security’s Final Administrative Removal Order i s sued pursuant to the I mmigration and Nationality Act (INA) § 238(b) , 8 U.S.C. § 1228(b). Because Val d i v i e z was an alien convicted of an aggravated felony, he was p roperly subject to the expedited administrative removal process. The petition is denied. U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Decem ber 2, 2013 Ly l e W . Cay ce Clerk Case: 12-60677 Document: 00512456686 Page: 1 Date Filed: 12/02/2013No. 12-60677

I. Valdiviez, a n a t i v e and citizen of Mexico, entered the United States unlawfully as a child in the 1960s and lived c ontinuously in the United States until his re m o v a l

. I n February 2011, Immigration and Customs Enforcement (ICE) initiated a n investigation into Valdi vi e z for “fraudulently using the id e n t i t y of a deceased person named Pablo Hernandez.” The investigation

r ev e al e d th at Vali divi e z had used Pablo Hernandez’s social security numbe r , a n d obtai ned property, bank accounts, driver’s l i censes, and vehicles u sing the stolen identity. While searching Valdiviez’s home and vehicle pursuant to a warrant, ICE agents found thirteen f irearms. On November 18, 2011, Valdiviez pleaded guilty to and was convicted of one count of being an illegal alien in possession of a firearm in violation of 18 U.S.C. § 922(g)(5). On January 24, 2012, the D epartment of H omeland S ecurity (DHS) issued to Valdiviez while h e was s till serving his sentence a Notice of Intent, informing him that he was subject t o expedited removal pursuant t o INA § 238(b), 8 U.S.C. § 1228(b). Val d iviez refused to sign the Notice o f Intent. Valdiviez did not exercise his right to file a written response to the N o tice of Intent. On February 28, 2012, DHS served Valdiviez with a Final Administrativ e R e m oval Order (FARO), stating that Valdiviez was removable because he had been convicted of

an aggravated felony and was n o t a c itizen of the United States nor lawfully admitted for permanent residence. The FARO further stated th at Valdiviez was “ineligible for any r elief f rom removal that the Secretary of Homeland Security may grant in an exercise of discretion.” Valdiviez subsequently expressed fea r of persecution or torture if he returned to Mexico. A “reasonable fear” interview was conducted by the asylum office. See 8 C.F.R. § 208.31(b). The a sylum officer determined that Valdiviez did not h ave a reasonable fear of persecution o r torture. Valdiviez sought review of

2 Case: 12-60677 Document: 00512456686 Page: 2 Date Filed: 12/02/2013No. 12-60677

the asylum officer’s decision by a n Immigration Judge (IJ). I d

. § 208.31(g). The IJ upheld the a sylum officer’s decision. No further appeal s w e r e a vailable to Valdiviez. Id . § 208.31(g)(1). Valdiviez filed a motion for stay of removal with th is court. While the motion and petition for review were pending, Valdiviez w as removed to Mexico. He subsequently filed a motion asking this court for an order (1) directing ICE to s h ow cause why this court s hould not impose sanctions; or (2) instruct ICE to return Valdiviez to the United States; or (3) admonish ICE for usurping judicial authority. The motion was carried with this case. II. Valdiviez challenges t wo aspects of the FARO. First, Valdiviez argues that he is not subject to the expedited removal p rocess because he is not an alien as described in the removal s t a t u t e . Specifically, Valdiviez asserts that the expedited removal process applies only to al i e n s who have been “admitted” to the United States and have committed an aggravated felony, and does not apply to aliens who entered the United States unlawfuly. Second, he argues that the FARO incorrectly stated that he was n ot entitled t o a ny discretionary relief, which would qualify him for an adjustment of status. A. Two issues must be a ddressed in analyzing whether we have j urisdiction to consider this petition for review. First, there is generally no right to seek review of an order of removal entered by a D epartment o f H omelan d S e c urity Service o fficer after expedited removal procedures. 8 U. S .C. § 1252(a)(2)(c); 8 C.F.R. § 238.1. Even if an exception exists, judicial review can b e had of “a final order o f removal only if

. . . the alien has e xhausted all administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1). The exhaustion requirement i s jurisdictional. See Lopez-Dubon v . Holder , 609 F.3d 6 42, 644 (5th Cir. 2010). We address the exhaustion point first.
3 Case: 12-60677 Document: 00512456686 Page: 3 Date Filed: 12/02/2013No. 12-60677

Th e gov e rn m e nt a s s e rt s th at Val divi e z f ailed to exhaust his a dministr ativ e remedies because he did not file a response to the Notice of Intent, l eaving this court without jurisdiction to review his petition. Valdiviez counters that t he available administrative remedies are limited t o challenges of factual deficiencies, not legal conclusions. He further argues that DHS officers are not trained t o interpret immigration statutes to the extent of an IJ or th e B oard of Immigration Appeals (BIA). INA § 238(b), 8 U.S.C. § 1228(b), authorizes the Attorney General to expedite removal of an alien who is n ot a lawful permanent resident and who is deportable for committing a n aggravated felony. 8 U.S.C. § 1228(b)(1), (2)(A). The alien h as ten calendar days to file a written response to the Notice of Intent. 8 C.F.R. § 238.1(c)(1). In response, an alien may designate a country o f r emoval; rebut the allegations supporting the charge; request to review the Government’s evidence supporting the charge; request a n extension o f time t o respond; and

r e quest withholding of removal under the C onvention Agains t T o rtu r e ( CAT)

. I d

. If the alien does not timely rebut the c h arges, a D H S officer issues a FARO and the alien may be removed fourteen days after issuance of t h a t order. Id. § 238.1(d)(1). Valdiviez challenges the FARO’s legal c onclusion that he is subject to the expedited removal process on the ground that it applies only to aliens “admitted” to the United States. Although the Notice o f Intent i ncluded c onclusions of law

an d V aldiviez had an opportunity to respond to the allegations supporting the charges against him, the relevant regulations indicate th at the response process is g eared toward resolving only issues of fact. I d

. §238.1(d)(2)(i),(ii) (stating that the DHS officer may base its decision following a response to a Notice of Intent

on whether or n ot t h e alien demonstrated a genuine issue of material fact). Further, aliens subject to expedited removal do not appear before an IJ, nor can they appeal an adverse decision to the BIA. See generally id

. § 238.1. The

4 Case: 12-60677 Document: 00512456686 Page: 4 Date Filed: 12/02/2013No. 12-60677

relevant statutes a nd corresponding regulations therefore did not provide Valdiviez with a n avenue to challenge the l egal conclusion that he d o es not meet the definition of an alien subject to expedited removal. As such, Valdiviez did not fail to exhaust his administrative remedies. 1 B. Even without th e bar of exhaustion, there is still the i mpediment that “no court shall have jurisdiction to review any final order of removal a gainst an alien who is removable by reason of having committed [an a g gr av a t ed felony].” 8 U.S.C. § 1252(a)(2)(C). Non e theless, another section o f that same statute recognizes that “an appro p r i a t e court o f appeals” h as jurisdiction to consider “constitutional claims or questions of law raised u pon a petition f or r eview.” I

d

. 1252(a)(2)(D). The claims presented are of th at nature, and w e have j urisdiction to review them. 1
. The prer e qui s ites for e xpedited removal a re that th e person be (1) an alien, (2) who has committed a crime c o v e r e d in 8 U.S.C. § 1227(a)(2)(A)(iii) (aggravated f

e lony), and (3) has not been admitted, even conditionally, a s a lawful permanent resident: (b) Removal of aliens who are not permanent residents (1) The Attorney General may, in the case of an alie n d e s c r ibed in paragraph (2), determine the deportabilit y of such alien under section 1227(a)(2)(A)(iii) of this title (relating t o conviction of an a ggravated f

elony) a nd issue an o rder of r e moval pursuant t o t h e procedures set forth in this s ubsection o r section 1 229a of this title. (2) An alien is described in this paragraph if the alien–

1 This is not to s ay that there are no ad m inis trative rem ed ies available to a p etitioner challenging a N otice of Intent; rather, und er the circum stances of this cas e, the legal ques tion p res ented w as not s ubject to the available m ethod s of ad m inis trative review s et f orth in 8 C. F. R. § 238. 1(c) ( 1) , ( d) ( 2) (i) , (ii)

. 5 Case: 12-60677 Document: 00512456686 Page: 5 Date Filed: 12/02/2013No. 12-60677

(A) was not lawfully admitted for permanent residence at the time at which proceedings under this section commenced; or (B) had permanent resident status o n a conditional basis

. . . at th e tie that proceedings under this section commenced. 8 U.S.C. § 1228(b).
There is no dispute that Valdi v i ez is an alien who c o mmitted an aggravated felony (i l l egal alien in possession of a firearm), a nd who has no
s t atus as a lawful permanent resident. Indeed, Valdiviez c onceded h e w a s removable as an aggravated f elon. Section 1 227 (a)(2)(A)(iii) states that “[a]ny alien who is convicted of an a g gr a v a t e d felony at any t i me after admission is deportable.” (emphasis added). The term “ admission” is defined as “t h e lawful entry of the al i e n i nto the United States after i nspection and authorization by an immigration officer.” Id . § 1101(a)(13)(A). Valdiviez argues that § 1228(b) requires an alien to have been convicted of an aggravated felony as defined in § 1 227(a)(2)(A)(iii) in o rder to be s ubject to

e xp e dited removal, and § 1227(a)(2)(A)(iii) require s th at a n ali e n h av e c o m m itt e d the aggrav a t e d f

elony after having been “admitted” to the United States. Valdiviez asserts that because he was not admitted into the United States but instead entered unlawfully, he does not meet the requirements incorporated by reference into § 1 228(b) and is not subject to expe d i t e d r e m oval. Essentially, Valdiviez argues that expedited removal proceedings apply only t o l a w f u lly admitted non-permanent resident aliens who committed aggravated felonies. This argument has been uniformly rejected by other courts of appeals. See Us-Zepeda v. Holder , 446 F. App’x 562, 563 ( 4th Cir. Sept. 15, 2011) (finding that petitioner was properly subject to expedited remo v al proceedings despite petitioner not having been “ admitted” to the United States); G.S. v. Holder , 373 F

. Ap p ’ x 836, 847 (10th Cir. Apr. 15, 2010) (finding that § 1228(b) applies to
6 Case: 12-60677 Document: 00512456686 Page: 6 Date Filed: 12/02/2013No. 12-60677

aliens not l a w f

u l l y admitted for permanent r e sidence and that the “crossreference to § 1227(a)(2)(A)(iii) simply mean[s] that, among persons who are not permanent resi d ents, only aggravated felons are subject to e xpedited administrative removal, regardless of whether they were previously admitted” (internal quotations omitted and al terations i n or i gi n a l)); United States v. Hernandez-Vermudez , 356 F.3d 1011, 1014-15 (9th Cir. 2 004) (deferring to the Attorney General’s interpretation that § 1228(b) applies to aliens who ar e not lawful permanent residents); Bamba v. Riley , 366 F.3d 195, 198 (3rd Cir. 2004) (finding that the “better interpretation” of § 1228(b) is that the statute applies to all aliens not admitted for p e r m a n e nt residence who committed an aggravated felony); Bazan-Reyes v. I.N.S

. , 256 F.3d 600, 605 (7th Cir. 2001) (finding that nothing in § 1228(b) limits the expedited r e moval process t o “admitted” aliens). Such u nanimity i ndicates the common-sense appeal to the outcome each court reached. Even so, we are not immune, as li k e l y neither were th e other circuits, to t h e l o gi c al appeal of a textual a rgument that Congress limited the applicability of expedited removal under § 1 228(b)(1) to the terms of the statute it incorporates b y reference, namely, § 1227(a)(2)(A)(iii). We conclude the textual argument is weak for the following reasons. In 1990 when “aggravated felony” was added to the o ther gro u n ds for deportability u nder what is now § 1227, it referred to a n “ alien who is convicted of an aggravated felony a t any time after entry is deportable.” Immigration Act of 1990, Pub. L. No. 101-649, sec. 602, 104 Stat. 4978, 5077-5080. That language

was not changed when what is now Section 1228(b)(1) was adopted in 1994. The adoption of the Illegal Immigration R eform Responsibility Act of 1996 (IIRIRA), caused the word “entry” to be changed to “admission” i n § 1227(a)(2)(A)(iii). Pub. L. No. 104-208, sec. 308, 110 Stat. 3009-546, 3009-621. As we will discuss sh o r tly, it is clear that Congress sought to streamline the procedures for removing aliens convicted of aggravated felonies. Because the new procedures
7 Case: 12-60677 Document: 00512456686 Page: 7 Date Filed: 12/02/2013No. 12-60677

adopted in 1 9 9 4 applied to all who had made an “entry,” it did not matter

w hether the offense was c ommitted after inspection and admission, or after a surreptitious and illegal entry. To accept petitioner’s argument, we w ould have to con c l u d e t hat the enactment of I IRIRA i n 1996 narrowed the application of expedited removal for reasons that are entirely unclear. We discern a different e ffect, one that illuminates the relation b etween the relevant provisions o f § 1227 and § 1228. The many subparts of § 1227 identify “classes of deportab l e aliens” who upon order of the Attorney G eneral may be deported. § 1227(a). The Attorney General may exercise that authority through removal proceedings commenced by an immigration judge. See 8 U.S.C. §§ 1229 & 1229 a . T h o s e proceedings may require determining whether a n alien is an aggravated felon u nder the requirements of § 1227(a)(2)(A)(iii). Co n gr e s s in 1996 changed the point at which deportation grounds under § 1227 applied to an alien instead of exclusion grounds under § 1 182, making th e decision turn on whether the alien had been admitted. The effects were these: The regulatory f

ocus o n admission rather than entry is i n large part the product of C ongress’s comprehensive revision of th e Immigration and Nationality Ac t i n 1 9 9 6. P rior to 1 996,

. . . noncitizens who had entered – even surreptitiously – w ere subject to grounds o f deportability rather than excludability; they w ere also entitled to the greater procedural protections of a deportation proceeding rather than an exclusion proceeding. In 1996, C ongress rewrote the INA, largely eliminating the exclusion-deportation line and replacing it w ith a focus on the concept of “admission.”

. . . And because admission is specifically defined a s “the lawful e ntry of th e alien into t he United States after inspection and authorization by a n immigration officer,” this change puts immigrants who sn e a k across the border on the same footing as those who present themselves at the border. INA § 101(a)(13), 8 U.S.C. § 1 101(a)(13). B o t h are subject t o the grounds of inadmissibility, and both are more likely to be screened using summary procedures.
Adam Cox and E ric A. P osner, The Second-Order Structure of Immigration Law , 59 S TA N L. R E V
. 809, 822 n.61 (2007).

8 Case: 12-60677 Document: 00512456686 Page: 8 Date Filed: 12/02/2013No. 12-60677

After 1996, an alien who had been convicted of qualifying offenses under S e c t i o n 1 227, such as a crime involving moral turpitude, or certain multipl e criminal convictions, or certain drug or f i r earm offenses, o r any aggravated felony, could be ordered removed by an immigration judge when, b esides any other r e quirements, there was proof that the ali e n c ommitted s uch a n offense after admission. 8 U.S.C. § 1227 (a) (2)(A) & (B). Section 1228 gave the Attorney General author i t y t o make available “special removal proceedings a t c e r tain F e deral, State, and local correctional facilities” for those convicted of any o f s everal offenses, including but not limited to aggravated felonies. § 1228(a)(1). Th is section allows § 1229a proceedings, with certain e xceptions, to t a k e place within the institutions. Id. Section 1 2 28(a)(3) requires the Attorney G eneral to adopt proc e du r e s f o r ali e n s c o nvic t e d of aggravated felonies so that their removal proceedings will be completed before their release from prison. § 1228(a)(3)(A). In addition to Section 1228(a)’s institutional removal program, Section 1228(b) provides for an administrative removal pro gram that does not involve

an immigration judge, does not p rovide f or an administrative appeal, and judicial r eview i s a v a ilable, if a t all, on limited t erms s uch as we discussed earlier. See 8 C.F.R. § 2 38.1 (details the procedure s f o r expedited removal). Though petitioner Valdiviez was processed for removal while in p rison serving his sentence for an aggravated felony, § 1228(b) d o es not state that the procedures apply only to those currently incarcerated. These procedures may be used for “an alien d e scr ib ed in paragraph (2),” i.e. , an alien without lawful p ermanent r esident status. § 1228(b)(1) & (2). There is no suggestion that the class of aliens to whom these special procedures apply is further limited. Thus, the expedited procedures apply to aliens a dmitted after inspection and to those who evaded i nspection. When § 1227 w a s r e v i s e d two years after the a doption of § 1 2 2 8 (b ) , the c hange shifted the dividing line
9 Case: 12-60677 Document: 00512456686 Page: 9 Date Filed: 12/02/2013No. 12-60677

between when deportation grounds w ould apply t o someone with a conviction for

an aggravated f

elony and when exclusion rules would apply. We see § 1228 as independent of the different deportation and exclusion grounds a nd procedures. It creates a s ummary process for removing aliens with qual i f y i n g c onvictions, many and perhaps most b eing processed while they are s erv i ng their prison sentences so that they w ill b e removed immediately after completing them. To apply l i m its from § 1227 a nd distinguish between summary procedures applicable to prison inmates who were and those who were not admitted into the country is a complete variance from the thrust of § 1228(b). 2 Even if DHS also

uses these expedited procedures for those not then serving p rison sentences (and

we have no evidence on that), such wider availability d oes not affect that there is neither § 1228 text nor logical reason for using prior valid a dmission to limit which aggravated felons, a s they are completing their prison sentences, can be removed expeditiously. Confirmation of our u nderstanding a ppears in the regulations that were adopted by the Department of H o m e l and Security. See 8 C.F.R. § 238.1. 3 An administrative removal o rder may be entered if the following f indings are made: (1) the person i s an alien, (2) is not a lawful permanent r e s i d e nt; ( 3) has been

2 Vald iviez argues that by stating the “d ep ortability” of an alien is to be determ ined in the exp ed ited rem oval p roced ur e s, C o n gr e ss wa s a dop ting the INA’s d is tinction betw een aliens
w ho have been ad mitted and are “d ep ortable” and aliens w ho have not been ad m itted and are “inad m is sible. ” C

f

. 8 U

. S. C

. § 1182 (cap tioned “inad mis s ible al iens ”) and 8 U

. S. C. § 1227 (cap tioned “d ep ortable aliens ”)

. Vald iviez argues that Congres s m us t have i n tend ed § 1228(b) ’s exp ed ited rem oval p roceed ings to ap ply only to “d ep ortable” aliens , i

. e. , thos e aliens s ubject to ground s f

or d ep ortation w hich ap p ly only af ter ad m is s ion. We accep t that us ing the
w ord “rem ovability” w ould have f it better w ith our interp retation of § 1228(b) , but w e d o not agree that the w ord choice overcom es all the contrary ind ications of the bread th of coverage. At m os t the w ord creates am biguity, w hich, as w e w ill d is cus s , is d is p elled by the regulations ad op tedf

irs t by the Attorney G eneral, and now im p lem ented by D H S.

3 Sectio n 1 2 2 8 (b) ( 1) gives the Attorney G eneral authority to p rom ulgate regulations

. This obligation w as trans f erred to the D ep artm ent of Hom eland Security. H om eland Security Act of 2002, Pub. L. N o. 107- 296, s ec. 441, 116 Stat. 2135, 2177. 10 Case: 12-60677 Document: 00512456686 Page: 10 Date Filed: 12/02/2013No. 12-60677

c onvicted of an aggravated felony as d efined in Section 101(A)(43) of the INA, and (4) is deportable und e r S e c ti o n 1 2 2 7 ( a)(2)(A)(iii), “including an alien who has neither been a dmitted nor p aroled, b u t w h o is conclusively presumed to be deportable

. . . by operation of section 2 38(c).” 8 C.F.R. § 238.1(b)(1)(i)-(iv). Thus, the regulation anticipates the current argument and states that the e xpedited procedures apply even if the alien has never been admitted. In sum, w e a gr e e with o ur sister circuits and hold that § 1 228(b)’s expedited r emoval process a pplies to all aliens convicted of an aggravated felonywho are not admitted for permanent residence. That makes this section a selfcontained set o f provisions for special treatment o f a ggravated f elons. We decline to interpret the cross r eference i n § 1228(b) to aggravated felony crimes in § 1227(a)(2)(A)(iii) as a narro w i n g o f t h e class o f aliens subject to the expedited removal process. M o r e o v e r , V a l d i v i e z ’ s p r o p o s e d i n t e r p r e t a t i o n would contravene Congress’s intent to expedit e r e m oval of aliens who have committed a ggravated felonies. See Z hang v . INS , 274 F.3d 103 , 108 (2d Cir. 2 0 01) ( “[I]t is beyond cavil that one of Congress’s principal goals i n e n a c t i n g IIRIRA was to expedit e th e removal of aliens who have been convicted of aggravated felonies.” (citations omitted and alterations in original)); Hernandez–Vermudez , 356 F.3d at 1014 (“There simply is no denying t h at in enacting

. . . [ IIRIRA], C ongress intended to expedite the removal of c riminal aliens.” (citing H. R

. Conf. R ep. No. 104–828, a t 215 (1996); H.R. R ep. No. 104–469(I), at 12, 107, 118–25 (1996))). Because Va l diviez i s an alien, an a ggravated f elon, and n o t a lawful permanent resident, he was subject to expedited removal proceedings. 2
. Valdiviez also argues that the FARO i ncorrectly advised him that he was i n e li gib l e f

o r any discretionary relief from removal. Specif ic ally , Val divi e z ar gu e s that h e was prima facie eligible for the “Registry,” a mechanism that permits the

11 Case: 12-60677 Document: 00512456686 Page: 11 Date Filed: 12/02/2013No. 12-60677

Attorney General, i n h i s discretion, t o grant p ermanent r esident sta t us to individuals who have resided continuously in the United States since January 1, 1972; demonstrate good moral character; are not ineligible f or n aturalization; and are not otherwise deportable

. Se e INA § 249, 8 U.S.C. § 1259. Valdiviez

a s s e r t s that the INA does not automatically disqualify aliens with c riminal

r e cords, but rather requires consideration of several factors to determine whether the alien is of good moral character. Section § 1228(b)( 5 ) , h owever, states that “[n]o alien described in this section shall be eligible for any relief from removal that the Attorney General may grant in the Attorney General’s discretion.” 8 U.S.C. § 1228(b)(5) (emphasis added); see also United States v. Benitez-Villafuerte , 186 F.3d 651, 659 ( 5th Cir. 1999). Valdiviez is subject to removal under § 1 228(b) and th u s is statutorily ineligible for any discretionary relief. I II. Valdiviez was removed by ICE to Mexico while this petition for review and his motion for stay of removal were pending. Due to his removal, Valdiviez filed a motion with this court seeking an order (1) directing ICE to show cause why this court should not i mpose sanctions; or ( 2) alternatively, instruct ICE to return Valdiviez to the United States; o r ( 3 ) alternatively, admonish ICE for usurping judicial authority. On September 1 1, 2012, Valdiviez filed a motion for stay of removal with this c o urt. On October 24, 2012, this court ordered Valdiviez to submit a brief in support of his motion for stay of removal, and later ordered th e Government to respond. Valdiviez was removed while the motion to stay was pending a nd this court subsequently denied the motion as moot. Valdiviez argues that by removing him t o M exico while his motion for stay of removal was pending, ICE usurped this court’s authority and interfered with this c ourt ’ s d i s c r etion to determine whether a stay was warranted. He asserts
12 Case: 12-60677 Document: 00512456686 Page: 12 Date Filed: 12/02/2013No. 12-60677

that the Government intentionally r emoved Valdiviez in order to rend e r h i s motion for s tay of removal moot. Valdiv i e z c o n t ends that removal of aliens pending a motion for stay of removal i s a common practice o f ICE officials in the Fifth Circuit. The Government asserts that there was no intention to usurp this court’s a uthority, nor a ny evidence to support Valdiviez’s contention th a t the removal was desi g ned to moot his s tay request. The Government further contends that Valdiviez w as not diligent in seeking a stay of removal and failed to make inquires into h is removal s tatus as was required. See F I F T H C I R C U I T R U L E 2 7.3.1. ICE did not violate any order of this court. Further, neither the relevant portions of the INA n or the regulatio n s p r o v i de for an automatic stay of an alien’s removal during the 30-day period for an alien to file a petition for review with this court. See 8 U.S.C. § 1252(b)(3)(B); Tesfamichael v. Gonzales , 411 F.3d 169, 1 7 1 ( 5 t h Cir. 2005). Rather, the grant of a stay is an exercise of judicial discretion based on the circumstances of the case. See Nken v. Holder , 5 56 U.S. 418, 4 33-34 (2009). Finally, although this court would certainly disapprove of any practice by ICE officials t o intentionally thwart rulings on m otions for stay of removal, there i s n o evidence before this court to support s uch allegation. Because we c onclude that the INS acted lawfully i n removing Valdiviez while his motion for stay of removal was pending, his motion is denied. IV. For the foregoing reasons, the petition for r eview is D ENIED. The motion carried with the case is DENIED.

13 Case: 12-60677 Document: 00512456686 Page: 13 Date Filed: 12/02/2013No. 12-60677

E. GRADY JOLLY, Circuit Judge, specially concurring: I concur in the result the panel reaches. In my opinion, h owever, the plain reading of 8 U .S.C. § 1228(b), for which the petitioner advocates, is that
p rovision’s best interpretation. I concur s olely because I d e fer to the Departm e nt of Homeland S e curity and all other circuits that have addressed the provision, cf. Chevron, U.S.A., Inc. V. N atural Res. Def. Council, Inc. , 4 67 U.S. 837, 843 (1984), and thus I can see no compelling reason to initiate a circuit split.

14 Case: 12-60677 Document: 00512456686 Page: 14 Date Filed: 12/02/2013