FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERIKA GARCIA DE RINCON, 

Petitioner, No. 04-15411

v. D.C. No.  CV-04-00024-PMP DEPARTMENT OF HOMELAND

SECURITY,

Respondent. 

Appeal from the United States District Court

for the District of Nevada

Philip M. Pro, District Judge, Presiding

ERIKA GARCIA DE RINCON,  No. 04-70555

Petitioner, Agency Nos.

v.  A95-441-701

M A78-099-285 ICHAEL B. MUKASEY,*

Respondent. OPINION 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

June 13, 2008—San Francisco, California

Filed August 21, 2008

*Michael B. Mukasey is substituted for his predecessor, Alberto R.

Gonzales, as Attorney General of the United States, pursuant to Fed. R.

App. P. 43(c)(2). 

11277
Before: Mary M. Schroeder, John M. Walker, Jr.,** and

N. Randy Smith, Circuit Judges.

Opinion by Judge N. Randy Smith

**The Honorable John M. Walker, Jr., Senior United States Circuit

Judge for the Second Circuit, sitting by designation. 

11278 DE RINCON v. DEPARTMENT OF HOMELAND SECURITY
COUNSEL

Jon Eric Garde, Esq., Law Offices of Jon Eric Garde, Las

Vegas, Nevada, for the petitioner. 

Luis E. Perez, Office of Immigration Litigation, United States

Department of Justice, Washington, D.C., for the respondents.

OPINION

N. RANDY SMITH, Circuit Judge: 

The Immigration and Nationality Act (“INA”) contains a

number of provisions limiting our jurisdiction to review

11280 DE RINCON v. DEPARTMENT OF HOMELAND SECURITY
orders that remove aliens who attempt to enter the United

States unlawfully. Ranking among the most stringent is 8

U.S.C. § 1252(e). Section 1252(e) largely divests this court of

jurisdiction to review the merits of an expedited removal

order, which is an order that summarily removes an alien who

attempts to gain entry into the United States by falsely claiming citizenship. The petitioner, Erika Garcia de Rincon (“de

Rincon”), was subject to an expedited removal order in April

1999. Although we are sympathetic to the hardships resulting

from de Rincon’s subsequent removal from this country,

§ 1252(e) does not allow us to indulge those sympathies. We

lack jurisdiction over her consolidated appeal and, accordingly, must dismiss. 

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

De Rincon, a native and citizen of Mexico, first entered the

United States in 1995. In 1997 she married Alberto Rincon,

a lawful permanent resident; the two had a daughter born in

Las Vegas about that time. Sometime in 1999, de Rincon traveled to Mexico to visit her ailing mother. When she returned

to the United States in late April of 1999, she was detained

at the border. After being placed in secondary inspection, she

was interviewed by an Immigration Officer on April 23, 1999.

During that interview, which according to the record was conducted in her native Spanish, de Rincon was questioned about

the circumstances of her re-entry. She admitted that she had

falsely claimed to be a United States citizen (representing that

she was born in Los Angeles) in an attempt to gain entry into

the country. She likewise admitted that she knew it was illegal

to misrepresent her citizenship, and that she had no documentation to gain lawful entry.

Based on these statements, an expedited removal order was

issued the same day, deeming de Rincon removable as an

alien that had falsely attempted to gain admission as a United

States citizen. De Rincon maintains, in an affidavit later prepared in support of her appeal, that during the April 1999

DE RINCON v. DEPARTMENT OF HOMELAND SECURITY 11281
interview she “did not understand many of the questions or

what they were talking about . . . . I was only 22 years old and

I was very frightened and confused . . . . I did not know if

they were even going to let me go.” Premised on the summary nature of the expedited removal proceedings, de Rincon

alleges that she was denied due process. However, her affidavit does not address, and so does not dispute, that she made

a false representation of United States citizenship during her

attempted April 1999 entry. 

Within days of her expedited removal, de Rincon nonetheless re-entered the United States unlawfully and returned to

her husband and daughter in Las Vegas. Between 1999 and

2002, de Rincon and her husband purchased a home in Las

Vegas, and had another child, a son. Both she and her husband worked and raised their children together during that

time period. Other than her unlawful entries into the United

States, de Rincon has been law-abiding and productive.

On March 29, 2002, de Rincon filed a Form I-485 Application for Adjustment of Status based on her husband’s filing of

an approved I-130 visa on her behalf. In conjunction with

these papers, de Rincon filed an I-212 Application for Permission to Reapply for Admission into the United States after

Deportation or Removal. De Rincon appeared for a formal

interview before an immigration officer on December 16,

2003, not knowing that a search of her records had found the

April 23, 1999 expedited removal order. Immigrations and

Customs Enforcement (“ICE”) issued an immediate arrest

warrant and she was placed into custody. 

On January 6, 2004, de Rincon executed a sworn statement

taken by ICE regarding her immigration history. In that statement, she admits that she reentered unlawfully after her April

23, 1999 removal. ICE immediately reinstated her prior expedited removal order. The next day, January 7, 2004, ICE

issued a warrant of removal and deportation for de Rincon,

which she refused to sign. The day after that, January 8,

11282 DE RINCON v. DEPARTMENT OF HOMELAND SECURITY
2004, de Rincon received a decision denying her application

for adjustment of status based on her false claim of citizenship, a non-waivable ground for removal. She was removed

from the United States that evening. A petition for review

with the Department of Homeland Security (“DHS”) (No. 04-

15411) followed the reinstatement of her removal order. 

On January 8, 2004, de Rincon filed a habeas petition in the

District of Nevada challenging her reinstatement order, collaterally attacking the underlying expedited removal order and

requesting a stay of removal. A magistrate judge denied the

request for a stay; a district court judge subsequently granted

the stay, but not before de Rincon had already been removed

to Mexico. On February 19, 2004, the district court issued an

order addressing the remaining issues in de Rincon’s habeas

petition. It held, primarily, that it lacked jurisdiction to review

de Rincon’s reinstated removal order pursuant to 8 U.S.C.

§ 1231(a)(5). But, instead of complete dismissal, it transferred

de Rincon’s habeas petition to this court pursuant to 28

U.S.C. § 1631. Noting that de Rincon’s removal imposed the

“draconian result” of barring her from reapplying for admission for the next twenty years, the district court opined that

the Ninth Circuit might conclude that “minimum due process

concerns may be triggered.” De Rincon’s transferred habeas

petition was assigned No. 05-70555 in this court. Acknowledging that this court cannot take evidence that would purport

to support de Rincon’s claim that the underlying expedited

removal order violated due process, de Rincon now asks that

we re-transfer the habeas petition to the district court for an

evidentiary hearing. The appeal involving her habeas petition

was consolidated with her petition for review of the ICE’s

reinstated removal order; both appeals are before us now. 

II. STANDARD OF REVIEW

This court reviews questions of jurisdiction de novo. Burlington N. Santa Fe Ry. v. IBT Local 174, 203 F.3d 703, 707

(9th Cir. 2000) (en banc). The court also reviews due process

DE RINCON v. DEPARTMENT OF HOMELAND SECURITY 11283
claims and questions of law raised in immigration proceedings de novo. Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th

Cir. 2004).

III. DISCUSSION

Both of de Rincon’s two appeals seek to collaterally attack

her 1999 expedited removal order, albeit through alternative

means. In her first appeal, de Rincon petitions directly for

review of ICE’s reinstated removal order and seeks to collaterally attack the underlying expedited removal order on due

process grounds. In her second appeal, de Rincon asks that we

transfer her habeas petition back to the district court where it

could conduct an evidentiary hearing and reach the merits of

her claim that she was denied due process during the proceedings that led to her April 1999 expedited removal. In both

instances, jurisdictional bars prevent us from providing de

Rincon’s requested relief. 

A. This court lacks jurisdiction to hear de Rincon’s

collateral attack on her reinstated expedited

removal order.

Two statutes limit this court’s jurisdiction over certain final

orders of removal—8 U.S.C. §§ 1231(a)(5) and 1231(e).

These provisions preclude our review of the ICE’s January 7,

2004 reinstated removal order and the underlying expedited

removal order itself, at least with respect to the type of generalized due process claim de Rincon raises. 

[1] The first of these statutes, § 1231(a)(5), limits the scope

of this court’s review of reinstated removal orders. It states in

full: 

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 rein11284 DE RINCON v. DEPARTMENT OF HOMELAND SECURITY
stated 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. 

Id. (emphasis added). This court, sitting en banc, recently

examined the scope of § 1231(a)(5) in Morales-Izquierdo v.

Gonzales, 486 F.3d 484, 495-97 (9th Cir. 2007) (en banc).

Morales-Izquierdo held that the regulations implementing

§ 1231(a)(5), which allow an immigration officer to reinstate

removal orders without a full hearing before an immigration

judge, satisfied due process. Id. The court assumed jurisdiction to review such orders, but limited its review to the three

discrete inquiries an immigration officer must make in order

to reinstate a removal order: (1) whether the petitioner is an

alien; (2) whether the petitioner was subject to a prior removal

order, and (3) whether the petitioner re-entered illegally. Id.

at 495 (citing reinstatement regulations at 8 C.F.R. § 241.8).

Although Morales-Izquierdo left open the possibility that “individual petitioners may raise procedural defects in their particular cases,” it held that the regulations survived a facial due

process challenge. Id. at 496. The court further stated: “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.” Id. at 497. Thus, under MoralesIzquierdo, a petitioner cannot raise a due process challenge to

an underlying removal order and review of the reinstatement

itself is limited to confirming the agency’s compliance with

the reinstatement regulations. 

[2] Morales-Izquierdo did not, however, address the effect

that § 1252(a)(2)(D) may have on review of constitutional

claims raised in the context of reinstated removal orders. Section 1252(a)(2)(D) re-vests the circuit courts with jurisdiction

to hear “constitutional claims or questions of law” that might

DE RINCON v. DEPARTMENT OF HOMELAND SECURITY 11285
otherwise be barred under the INA. That provision states in

full: 

Nothing in subparagraph (B) or (C), or in any other

provision of this chapter (other than this section)

which limits or eliminates judicial review, shall be

construed as precluding review of constitutional

claims or questions of law raised upon a petition for

review filed with an appropriate court of appeals in

accordance with this section. 

§ 1252(a)(2)(D) (emphasis added). All three circuit courts that

have considered the interplay between § 1252(a)(2)(D) and

§ 1231(a)(5) have held that § 1252(a)(2)(D) re-vests the circuit courts with jurisdiction over constitutional claims or

questions of law raised in the context of reinstatement proceedings. See Lorenzo v. Mukasey, 508 F.3d 1278, 1282 (10th

Cir. 2007) (“Congress clearly provided for our review of

‘constitutional claims or questions of law’ related to reinstatement orders.”) (emphasis added) (quoting 8 U.S.C.

§ 1252(a)(2)(D)); Debeato v. Mukasey, 505 F.3d 231, 235 (3d

Cir. 2007) (“Accordingly, we conclude that . . . § 1252(a)

(2)(D)[ ] permits us to exercise jurisdiction over legal and

constitutional challenges to final orders of removal, including

those final orders that the Attorney General has reinstated

pursuant to § 1231(a)(5).”); Ramirez-Molina v. Ziglar, 436

F.3d 508, 513-14 (5th Cir. 2006) (“Because § 1231(a)(5) limits judicial review, § 1252(a)(2)(D) prevents its operation in

cases, such as this one, in which the validity of an underlying

order is questioned on constitutional or legal grounds.”). In

Martinez-Merino v. Keisler, 525 F.3d 801, 804 (9th Cir.

2008), which also addressed the reviewability of a collateral

attack on an underlying removal order raised after the reinstatement of that order, the court acknowledged these three

decisions but ultimately did not “decide [ ] the precise effect

of § 1252(a)(2)(D) on our review of reinstated removal

orders.” 

11286 DE RINCON v. DEPARTMENT OF HOMELAND SECURITY
[3] Both Debeato and Ramirez-Molina hold that

§ 1252(a)(2)(D) permits some collateral attack on an underlying removal order during review of a reinstatement order if

the petitioner can show that he has suffered a “gross miscarriage of justice” in the initial deportation proceeding.

Debeato, 505 F.3d at 235 (holding that the “gross miscarriage” standard is a “facet of the standard of review of collateral challenges to removal orders”); Ramirez-Molina, 436

F.3d at 514 (holding that “in the context of a petition for

review of a reinstatement decision, we can review the validity

of the underlying removal order only if [petitioner] establishes

that there was a gross miscarriage of justice in the initial proceedings”). Our court also applied the “gross miscarriage of

justice” standard to a petitioner’s collateral attack on an

underlying removal order during reinstatement, although it

did not explicitly define the limits of that standard. MartinezMerino, 525 F.3d at 805 (“He has not shown a ‘gross miscarriage of justice.’ He is not entitled to relief.”) (internal citation

omitted). So, while Morales-Izquierdo generally prevents a

petitioner from collaterally attacking an underlying removal

order on constitutional due process grounds, § 1252(a)(2)(D)

permits some measure of review if the petitioner can demonstrate a “gross miscarriage of justice” in the prior proceedings.

Unfortunately for de Rincon, however, whatever relief might

be gained by the operation of § 1252(a)(2)(D) and the “gross

miscarriage” standard, it is unavailable to her because her

underlying removal order is an expedited removal order that

is subject to additional jurisdictional bars—8 U.S.C.

§§ 1252(a)(2)(A) and 1252(e). 

[4] Although § 1252(a)(2)(D) re-vests courts with jurisdiction to review constitutional claims and questions of law otherwise barred by the INA, § 1252(a)(2)(D) itself is subject to

limitations. Section 1252(a)(2)(D) does not apply to the jurisdictional limitations codified elsewhere in § 1252. See

§ 1252(a)(2)(D) (review reinstated for provisions “other than

this section”) (emphasis added). One of those limitations is

contained in § 1252(a)(2)(A), which strictly circumscribes the

DE RINCON v. DEPARTMENT OF HOMELAND SECURITY 11287
scope of review of expedited removal orders to the grounds

enumerated in § 1252(e). See § 1252(a)(2)(A) (“no court shall

have jurisdiction to review” orders of removal entered under

8 U.S.C. § 1225(b)(1) [expedited removal orders], “except as

provided in subsection (e) of this section.”); see also 8 U.S.C.

§§ 1225(b)(1)(A)(i) and 1182(a)(6)(C)(ii)(I) (permitting an

immigration officer to issue an expedited order of removal

“without further hearing or review” if the alien “falsely represents, or has falsely represented himself or herself to be a citizen of the United States”). Section 1252(e) only permits

review of expedited removal orders in a habeas corpus petition, and even then the review is limited to an inquiry over

whether: “(A) the petitioner is an alien, (B) whether the petitioner was ordered removed under such section, and (C)

whether the petitioner can prove by a preponderance of the

evidence that the petitioner is an alien lawfully admitted for

permanent residence, [or is a refugee or has been granted nonterminated asylum].” See 8 U.S.C. § 1252(e)(2). 

[5] By the clear operation of these statutes, we are jurisdictionally barred from hearing de Rincon’s challenge to the January 7, 2004 reinstatement of her expedited removal order.

This court does retain some limited jurisdiction to adjudicate

a collateral attack on an underlying expedited removal order

that has been reinstated; but §§ 1252(a)(2)(A) and 1252(e)

expressly limit the scope of such review to habeas petitions

alleging that the petitioner is not an alien or was never subject

to an expedited removal order. See §§ 1252(a)(2)(A), 1252(e).

De Rincon’s direct challenge to the reinstated removal order

is not a habeas petition and it does not contest her expedited

removal order on any of the enumerated permissible grounds

in § 1252(e)—this court therefore has no jurisdiction to hear

it. 

[6] The Tenth Circuit has considered this exact question

and reached the same result. In Lorenzo, the petitioner was

seeking review of a reinstated expedited removal order. 508

F.3d at 1280. The Tenth Circuit acknowledged that the limita11288 DE RINCON v. DEPARTMENT OF HOMELAND SECURITY
tions in § 1231(a)(5) are subject to § 1252(a)(2)(D). But it

went on to hold that the jurisdictional framework preserved

by § 1252(a)(2)(D) over constitutional claims and questions

of law does not extend to collateral attacks on expedited

removal orders. The court explained: 

Section 1252(a)(2)(D) preserves § 1252(a)(2)(A).

Section 1252(a)(2)(A) provides that “no court shall

have jurisdiction to review” orders of removal

entered under 8 U.S.C. § 1225(b)(1), “except as provided in subsection (e) of this section.” The avenues

for review provided by § 1252(e) are strictly limited

and do not apply here. See Ochoa-Carrillo v. Gonzales, 446 F.3d 781, 782 (8th Cir. 2006) (explaining

that “the limited habeas review of (removal orders

issued under § 1225(b)(1) that is authorized by

§ 1252(e)(2) may not be conducted in a § 1231(a)(5)

reinstatement proceeding”). 

Petitioner’s 1998 removal order was issued pursuant

to § 1225(b)(1). As a result, we lack jurisdiction to

review any constitutional or statutory claims related

to the underlying removal order in this case. 

Id. at 1281. We agree with the Tenth Circuit’s explanation of

the statutory scheme: § 1252(a)(2)(A) fully preserves the

jurisdictional limitations found in § 1252(e).1 Section 1252(e)

1While the Ninth Circuit has not expressly addressed the interplay

between §§ 1252(a)(2)(A) and 1252(e), it has acknowledged that the jurisdictional limitations on review of expedited removal orders are quite

severe. See Avendano-Ramirez v. Ashcroft, 365 F.3d 813, 818-19 (9th Cir.

2004) (“[W]ere we in doubt about Congress’ intent to severely limit both

contemporaneous and later tampering from the results that flow from

§ 1225(b)(1) [expedited] removal orders, it has added provisions which

underscore that intent . . . . It has limited habeas corpus review to a rather

narrow group of questions, and it has declared that a long-standing rule

which permitted collateral attacks on removal orders in criminal proceedings shall not be applied to this type of removal.”). 

DE RINCON v. DEPARTMENT OF HOMELAND SECURITY 11289
in turn deprives us of jurisdiction to review de Rincon’s claim

that she was denied due process during the proceedings that

resulted in her April 1999 expedited removal.2

B. Both this court and the district court lack jurisdiction to hear de Rincon’s habeas petition challenging

her expedited removal order. 

As explained above, this court lacks jurisdiction over de

Rincon’s habeas petition collaterally attacking her expedited

removal order, because de Rincon does not raise any of the

three permissible bases for habeas review in this court

allowed under 8 U.S.C. § 1252(e)(2). Id. (limiting this court’s

habeas jurisdiction to review whether petitioner is an alien,

whether she was subject to an expedited removal order, and

whether petitioner is a lawful permanent resident or has been

granted asylum). De Rincon does not challenge her expedited

removal order on any of the approved grounds; consequently,

this court does not have jurisdiction over the particular collateral attack presented in de Rincon’s habeas petition.

Perhaps in recognition of the jurisdictional problems faced

in this court, de Rincon now seeks to have her habeas petition

re-transferred to the district court pursuant to 28 U.S.C. § 1631.3

2De Rincon’s challenge to the January 7, 2004 reinstatement of her

expedited removal order also vaguely contends that the reinstatement process itself deprived her of due process, arguing that during reinstatement

she was not permitted to review the Government’s evidence or present her

own evidence with the assistance of counsel. This generalized due process

challenge to the reinstatement regulations is soundly foreclosed by

Morales-Izquierdo, 486 F.3d at 495-96. We therefore deny the petition

with respect to this claim. Even if we read de Rincon’s argument charitably as a challenge to the reinstatement regulations as applied to her, it

still fails because she has not alleged any prejudice that resulted from a

more extensive reinstatement process. Id. at 496-97 (rejecting petitioner’s

as applied challenges based on lack of access to the administrative record

or counsel, due to failure to show prejudice). 

3

28 U.S.C. § 1631 provides: “Whenever a civil action is filed in a court

as defined in section 610 of this title or an appeal, including a petition for

11290 DE RINCON v. DEPARTMENT OF HOMELAND SECURITY
A case is “transferable” when three conditions are met: “(1)

the transferee court would have been able to exercise its jurisdiction on the date the action was misfiled; (2) the transferor

court lacks jurisdiction; and (3) the transfer serves the interest

of justice.” Puri v. Gonzales, 464 F.3d 1038, 1043 (9th Cir.

2006). The most significant hurdle to de Rincon’s request for

transfer pursuant to 28 U.S.C. § 1631 is the most obvious—

the district court has already dismissed her habeas petition for

lack of jurisdiction, due to the limitations on review of reinstated expedited removal orders contained in §§ 1231(a)(5)

and 1252(e). De Rincon points to no intervening jurisdictional

changes since the February 18, 2004 dismissal that would

have re-vested the district court with jurisdiction. In fact, the

law has only gotten worse for her in the interim. 

[7] The most significant change to the immigration statutes

since the district court’s February 2004 dismissal is the May

2005 passage of the Real ID Act (“RIDA”). Pub. L. No. 109-

13, § 106, 119 Stat. 231 (2005). RIDA amended § 1252(b)(9)

of the INA to vest the circuit courts with exclusive habeas

jurisdiction over petitions challenging final orders of removal.

See 8 U.S.C. § 1252(b)(9); 1252(a)(5) (“Except as otherwise

provided in this section, no court shall have jurisdiction, by

habeas corpus under section 2241 of Title 28, or any other

habeas corpus provision, by section 1361 or 1651 of such

title, or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law or

fact.”). As the Second Circuit has held, the passage of RIDA

and its attendant bar on a district court’s jurisdiction over

removal-based habeas petitions generally forecloses a circuit

review of administrative action, is noticed for or filed with such a court

and that court finds that there is a want of jurisdiction, the court shall, if

it is in the interest of justice, transfer such action or appeal to any other

such court in which the action or appeal could have been brought at the

time it was filed or noticed, and the action or appeal shall proceed as if

it had been filed in or noticed for the court to which it is transferred on

the date upon which it was actually filed in or noticed for the court from

which it is transferred.” 

DE RINCON v. DEPARTMENT OF HOMELAND SECURITY 11291
court’s ability to transfer a habeas petition related to a

removal order back to the district court. See Wang v. DHS,

484 F.3d 615, 618 (2d Cir. 2007) (“Finally, we cannot retransfer the case to the District Court under § 1631 for consideration of the petition because, as the District Court recognized,

the Real ID Act eliminated the availability of habeas corpus

as a separate means of obtaining judicial review of a final

order of removal.”). So, transfer is not possible here because

the transferee court has no jurisdiction over de Rincon’s petition, because of the jurisdictional bars in 8 U.S.C. §§ 1252(e)

and 1252(b)(9). 

Although it is not articulated in this manner, de Rincon’s

actual claim underlying her request for a § 1631 transfer is

based on the Suspension Clause—the limitations on jurisdiction in 8 U.S.C. § 1252 must not deprive her of some forum

to provide a full review of her habeas petition. In other words,

because the INA, as amended after the passage of RIDA, does

not allow a habeas petition challenging an expedited removal

order to be heard in any forum that could take evidence and

thereby fully adjudicate the claim, the INA provides no adequate substitute for habeas review and therefore suspends the

writ. Persuasive authority, and the sheer force of the statutory

scheme at issue, compel us to conclude otherwise. 

In Li v. Eddy, we suggested that narrow habeas review of

expedited removal orders does not raise the constitutional

problems alluded to in INS v. St. Cyr, 533 U.S. 289, 121 S. Ct.

2271, 150 L. Ed.2d 347 (2001), provided that the petitioner

has not been lawfully admitted. 259 F.3d 1132, 1135 (9th Cir.

2001), vacated on reh’g as moot, 324 F.3d 1109 (9th Cir. 2003).4

The Li court affirmed the district court’s jurisdictional dis4Li was subsequently vacated on mootness grounds, and is therefore not

binding precedent. We discuss it here nonetheless because the case is analytically sound, and because it was vacated on grounds unrelated to its

analysis of the constitutionality of the limitations on review of an expedited removal order. 

11292 DE RINCON v. DEPARTMENT OF HOMELAND SECURITY
missal of the petitioner’s habeas petition challenging her

expedited removal, because the petitioner had not raised any

claims falling within the narrow scope of review permitted by

§ 1252(e)(2). Id. at 1133. The court observed that the limitations in § 1252(e)(2) “could not be much clearer in [their]

intent to restrict habeas review.” Id. at 1134-35. The court

went on to reject the petitioner’s claim that she had a constitutional right to due process that was violated by an expedited

removal: “Li . . . has no constitutional due process right to

challenge her immigration status or to petition for entry into

the United States because she is a non-resident alien seeking

entry at the border into the United States . . . . The Supreme

Court has held that the discretion of Congress to determine

which and on what basis aliens may enter this country is paramount.” Id. at 1136. So, while Li is not a Suspension Clause

case per se, it does discredit the generalized due process argument raised by de Rincon, which is the right she seeks to vindicate via habeas.5

[8] Combined with the Avendano-Ramirez court’s holding

regarding the severity of the limitations on review in

§ 1252(e)(2), 365 F.3d at 818-19, we simply cannot avoid the

unambiguous effect of the statutory restrictions on review of

expedited removals. So, while the result may be unsatisfying

—and unduly harsh given de Rincon’s family situation and a

record indicating that she is otherwise an upstanding person—

we must dismiss de Rincon’s habeas petition for lack of jurisdiction and refuse transfer on the same grounds. AvendanoRamirez, 365 F.3d at 819 (“When Congress enacted IIRIRA,

it adopted a number of rules which fall with an implacable,

5As the court in Li and the parties themselves have noted, there is a separate statutory sub-section, 8 U.S.C. § 1252(e)(3), that allows a systemic

challenge to the expedited removal process and its implementing regulations to be brought in the United States District Court for the District of

Columbia. The regulations were sustained against such a challenge. American Immigration Lawyers Ass’n v. Reno, 18 F. Supp. 2d 38, 54-56

(D.D.C. 1998). 

DE RINCON v. DEPARTMENT OF HOMELAND SECURITY 11293
and perhaps unintended, harshness on some aliens. So it is

here.”).6

IV. CONCLUSION

As a result of her unlawful re-entry into the United States

after expedited removal, de Rincon has been removed to Mexico and leaves behind a lawful resident husband and two

United States citizen children. She faces a twenty year ban on

any subsequent applications for admission. It is a result that

is, in the words of the district court, “draconian.” But the limits on jurisdiction codified in § 1252(e) are indifferent to these

6Even if we had jurisdiction to consider de Rincon’s due process claim,

we would still be unable to provide relief. To prevail on that claim, de

Rincon would have to show actual prejudice, “which means that the outcome of the proceeding may have been affected by the alleged violation.”

Reyes-Melendez v. INS, 342 F.3d 1001, 1006 (9th Cir. 2003). De Rincon’s

primary contentions are that she did not understand some of the questions

she was being asked and that had she been given a fuller hearing she

would have developed a more complete record by presenting her own evidence. But her affidavit is revealing mostly for what it does not say. 

De Rincon does not contend that she did not misrepresent her citizenship during inspection, or that she did so because she was confused when

asked about that; nor does she argue that she had a valid claim for relief

from expedited removal that the truncated process prevented her from

bringing forward. Although de Rincon asserts she was “frightened and

confused” and “understood [ ] little” during her removal interview, she

fails to take the following step of alleging how this confusion affected the

outcome of that interview in any meaningful way. A review of the complete transcript of the interview, signed by de Rincon, does not bear any

indicia of confusion on her part. Thus, while de Rincon does make a generalized allegation of confusion, she fails to link it to any information that

was improperly conveyed as a result. See Morales-Izquierdo, 486 F.3d at

496 (rejecting due process claim based on inability to develop complete

record where petitioner “points to no material errors in his file; nor does

he explain what evidence he would have been presented, had he been

given an opportunity to do so”). Accordingly, even if there were some

forum with jurisdiction to reach the merits of her due process claim, we

would nonetheless conclude that de Rincon did not suffer the prejudice

necessary to gain relief. 

11294 DE RINCON v. DEPARTMENT OF HOMELAND SECURITY
sorts of equitable considerations. Although it gives us no pleasure to do so, we dismiss de Rincon’s consolidated appeal for

lack of jurisdiction. 

In No. 04-15411, de Rincon’s habeas PETITION is DISMISSED. In No. 04-70555, de Rincon’s PETITION for

review is DISMISSED in part and DENIED in part. 

DE RINCON v. DEPARTMENT OF HOMELAND SECURITY 11295