F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

A L E J A N D R O I S R A E L V I L L

A

A N G U I A N O , P etitioner
,

v

.

E R I C H. H O L D E R , J R ., Attorney General, Respondent

. N o. 08-74585

Ag ency No. A090-068-616

OPI NI ON

O n Petition for Review of an Order of the B oard of I

mmig ration Appeals

Arg ued and Submitted April 9, 2013—Pasadena, California

F iled Aug ust 14, 2013

B efore: Marsha S. B erz on, Richard C. Tallman, and Milan D. Smith, J r., Circuit J udg es.

Opinion by J udg e B erz on; Dissent by

J udg e TallmanV I L L A -A N G U I A N O V

. H O L D E R 2

SUMMARY *

Im m igration

The panel g ranted A lejandro I srael Villa-Ang u iano’s petition for review from the g overnment' s reinstatement of a prior removal order, vacated th e reinstated order, a nd remanded the c ase to I mmig ration an d Customs Enforcement.

The p anel h eld that, because the district court hearing the crimi nal p rosecution ag a inst Villa for illeg al reentry invalidated on constitutional g rounds the prior removal order, the g overnment could not simply rely on a p re-prosecution determination to reinstate the prior order. The panel held that the ag ency must provide Villa with an opportunity to address the ex pedited reinstatement determinati on, and that the
ag ency must independently reassess w hether t o r e l y on the prior order or rather to instig ate full removal proceeding s.

Dissenting

, J udg e Tallman w ould deny relief. He would find that the laws enacted by Cong ress, and t h e D epartment of H o meland Security ’ s permissible construction of those laws, a llowed the immig ration officer to re i n s tate Villa’s prior order of r emoval, reg ardless of th e d i s trict court’s conclusion. J udg e Tallman al s o wrote that the majority opinion a

nnounced a novel holdin g that an alien w ho unlawfully re-enters t h e c o u ntry h as a due process rig ht to influence the ex ercise o f t h e Department of Homeland Security ’s prosecutorial discretion.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.V I L L A -A N G U I A N O V

. H O L D E R 3

COUNSEL

Karla L

. Kraus (arg

ued), K raus L aw Corporation, San Dieg o, California, for Petitioner.

Carol F ederig hi (arg

ued), S enior L itig a tion Counsel; Tony W est, Assistant A ttorney General; W illiam C. Peachey

, Assistant Director, United States Department of J ustice, Civil Division, W ashing ton, D.C., for Respondent.

OP INION

B ERZ ON, Circuit J udg e :

Alejandro I srael Villa-Ang uiano ( “ Villa”) petitions for review o f the g overnment’s reinstatement of a removal order issued in 1997. V illa contends that the I m mig ration a nd Customs Enforcement (“I CE”) a g ency of the Departm e nt o f Homeland Security (“DHS”) may not deport him on the basis of his prior removal o r der, because a federa l district court found that due process violations in h is 1997 im m ig r ation hearing rendered the removal order invalid as a predicate for criminal prosecution under 8 U.S.C. § 1326.

W e have jurisdictio n u n d er 8 U.S.C. § 1252(a)(1) to review a reinstatement order, see Ca s tro-Cortez v. INS
, 239 F .3d 1037, 1044 (9th Cir. 2001), abrogated on other grounds by F

ernandez-Var

g a s v

. Gonzales

, 548 U.S. 30 (2006); accord Padilla v

. Ashcroft

, 3 3 4 F .3d 921, 924 (9th Cir. 2003), and retain jurisdiction under § 1252(a)(2) ( D ) to consider “constitutional claims o r q u e stions of law raised
up o n a p e t ition f

or review,” see Garcia de Rincon v. D HS
, 539 F .3d 1133, 1137–38 (9th Cir. 20 0 8 )

. F or the reasonsV I L L A -A N G U I A N O V

. H O L D E R 4

stated below, we g rant Villa’s petition, vac a t e the reinstatement order, and remand to I CE for f urther proceeding s.

I

.

Thi s c a s e comes before us in an unusual posture. Villa, who entered the United States from Mex ico at the ag e of one, became a l a wf

u l permanent resident in 1989. F ollowing a conviction f

or voluntary manslaug hter in 1993 and service o f his stipulated sentence, Villa was ordered deported in 1997 at

a g roup hearing before an immigr ation judg e in El Centro, California. H e was p hy sically removed in 1999 b u t subsequently reentered the United States without permission in 2001. On May 3
, 2008, Villa wa s a r r ested by local law enforcement following a traffi c s t op. The nex t day

, the
g overnment determined that V illa w as “subject to removal b y reinstatement of the prior [ 1997] order,” pursuant to 8 U .S.C. § 1231(a)(5) and 8 C.F .R. § 241.8.

Villa concedes that he was provided n o tice a nd an op p o r t u nity to c ontest r einstatement on May 4, 2008, a s required by 8 C.F .R. § 2 41.8(b). His sig nature appears on the Notice of I n tent/Decision to Reinstate Prior Order f o rm, b e side the statement, “I do not wish to make a statement cont esting this determination.” The g overnment did not, however, proceed at that po i n t w i th the actual removal. I nstead, the g overnment decided to prosecute Villa for illeg al reentry

.

B e fore the district court on the illeg al reentry charg e, a nd

now w ith the a ssistance o f counsel, Villa collaterally a ttacked hi s 1 9 9 7 removal order. See 8 U.S.C. § 1326(d); United States v. Mendoza-Lo

p e z , 481 U.S. 8 28, 837–38 (1987)V I L L A -A N G U I A N O V

. H O L D E R 5

(permitting an al i e n t o seek review of the deportation order used as a p redicate element of an illeg al reentry o ffense if he

was denied judicial review of prior removal proceeding s). He contended that due pro c ess violations in the underly ing removal proceeding s prec l u d ed him from obtaining judicial review of his 1997 deportation order. T he g overnment conceded that Villa was e l i g ible in 1997 for relief under I mmig r a tion and Nationality Act ( “I NA”) § 212(c) and that the I mmig ration J udg e did not inform h im of that fact. B ut, the g o vernment arg ued § 212(c) r elief was not plausible at the time of the immig ration hearing

, which predated INS v. St. Cyr
, 53 3 U .S. 289 ( 2001), and thus Villa could not show prejudice.

The district court rej ected the g overnment’s arg uments, finding : (1) t h at Villa h ad demonstrated a d eprivation of his rig ht to counsel in the g roup immig ration hearing ; a nd (2) that Villa was prejudiced by the resulti n g d u e process violation, because he was elig ible for relief under § 212(c) at the time of his removal proceeding s, and w as not so informed. Consequently

, the district court held, “the outcome of [ his] immig ration proceeding w a s potentially a ffected b y the denial of his rig ht to counsel.” 1 The court held the 1997

1 “ [T ]o m o u n t a s u ccessf u l co llateral attack o n a p rio r rem ov al o rd er

u n d er § 1 3 2 6 (d ), an alien w h o w as co n v icted of an ag g rav ated f elo n y an d

w as n o t p ro perly ad v ised o f h i s rig h t to co u n sel o r d id n o t w aiv e th is rig h t

m u st sh o w th at h e w as actu ally p rej u d iced b y th is d u e p ro cess v i o l atio n ,” Un ited S t a tes v. Reyes-Bo n illa

, 6 7 1 F.3 d 1 0 36
, 1 0 4 9 & n .1 1 (9 t h Cir. 2 0 1 2 ), cert. den ied , 1 3 3 S. Ct. 3 2 2 (2 0 1 2 ). A t th e sam e tim e, h o w ev er, a p etitio n er n eed n o t d em o n strate prej u d ice as a resu lt of a d ep riv atio n o f th e rig h t to co u n sel t o p rev ail o n a p etitio n f o r rev iew o f a rem ov al o rd er. S ee Mo n tes-Lo

p ez v. Ho ld

er , 6 9 4 F.3 d 1 0 8 5 , 1 08 6
, 10 9 0
, 1 09 3

– 9 4 (9 th Cir. 2 0 1 2 ).V I L L A -A N G U I A N O V

. H O L D E R 6

removal o rder invalid as the predicate for c ri m i n al prosecution u nder § 1326 and so, o n October 9, 2008, dismissed Villa’s indictment.

O n October 10, 2008, the day after Villa’s cr i m i n al proceeding s were dismis s e d

, i m m i g r a t i o n o f f i c i als “reinstated

on toda y ’ s d a te” the “prior order of removal by an I mmig r a tion J udg e,” and Villa was phy sically removed. Villa

was neither notified a t that p oint that the order was g oing to be issued and ex ecuted nor g iven an opportunity to object, either in writing or orally

, to the reinstateme n t

. He was denied such opportunity despite t h e very relevant d e v elopment that o ccurred in the five months si n c e reinstat e ment proceeding s were initiated—namely

, the district court’s determination that the 1997 removal order was constitutionally

infirm.

I CE was aware of the c r i minal prosecution from the
outset. The Record o f Deportable/I nadmissible Alien, F orm I -213, dated May 4, 2008, indicated tha t V i lla was “being held in D HS custody p ending criminal prosecution for violation of 8 U.S.C. § 1326.” B ut the addendum to the f o rm,

B ecau se Villa d o es n o t p etitio n f o r rev iew o f th e 1 9 9 7 rem o v al o rd er in th is co u rt, w e n eed n ot d eterm i n e at th is stag e w h eth er h e w as p l au sib ly elig i b l e f or relief u n d er § 2 1 2 (c) at th e tim e o f h is im m ig ratio n h earin g

. In an y ev en t, th e reco rd d o es n o t co n tain su f f icien t in f o rm atio n ab o u t th e

n atu re o f Villa’ s crim i n al co n v ictio n o r th e eq u i ties o f

h is case to en ab le

u s to m ak e s u ch a d eterm i n atio n

. No r n eed w e reso lv e w h eth er Villa m

u st d em on strate p rej u d ice to o b t ain relief

. Rath er, as d iscu ssed in fra

, o u r q u estio n is w

h e t h er V illa’ s rein sta temen t p ro ceed in g s acco rd ed h im ad eq u ate d u e pro cess, g iv en th e d iscretio n av ailab le to im m i g ratio n ag en ts

as t o h o w to p u rsu e rem o v al o f an alien f o llo w in g th e alien ’ s su cces s fu l

co llateral ch allen g e t o t h e u n derly in g rem o v al o rd er as p art o f a § 1 3 2 6
p ro secu tio n

.V I L L A -A N G U I A N O V

. H O L D E R 7

dated October 10, 2008, reflects confusio n reg arding the result of th a t criminal case. The a ddendum correctly n oted, “On October 09, 2008, Subject’s case was d i s missed for violation of 8 USC 1326(a) — Deported Alien F ound in the United States.” I t went on, however, to state erroneously that Villa “ served 156 day s c onfinement in federal custody for vio l a t i on of 8 USC 1326( a) — Deported Alien F ound in the United States,” imply ing th a t V illa had been convicted o f illeg al reentry (emphases a dded). The addendum n owhere indicated th e grounds on which the § 1326 indictment was dismissed or evidenced a ny awareness by I CE off

i c ials that the district court had held the orig inal removal order invalid. I t c o ncluded with the statement: “Subject’s p r i o r o rder o f removal b y an I mmig ration J udg e will be reinstated on today ’s date.” Villa was immediately removed.

This petition for review followed.

I I

.

The I NA’s reinstatement provision, 8 U.S.C § 1231(a)(5), specifically bars relitig ation of th e merits of the reinstated removal order—i.e. determination of an alien’s r emovability

or elig ibility for relief. 2 According ly

, ex cept whe re

2 T h e p ro v i sio n

states in f u ll:

If th e A tto rn ey Gen eral f

in d s t h at an alien h as reen tered th e Un i ted States illeg ally af t er h av in g b een rem o v ed or h av in g d ep arted v o lu n tarily

, u n d er an o rd er o f rem o v al, th e p rio r o rd er o f rem o v al is rein stated f ro m its o rig in al d ate an d is n o t su

b j ect to b ein g reo p en ed o r rev iew ed

, th e alien is n o t elig ib le an d m ay n o t ap p ly f o r an y reliefV I L L A -A N G U I A N O V

. H O L D E R 8

constitutional claims or questions of law arise in the contex t of reinstatement and “the petitioner can demonstrate a ‘g ross miscarriag e of

justice’ in the [ orig inal removal] proceeding s , ” G a r cia d e Rincon
, 539 F .3d a t 1 138, 3 our review o f a reinstateme n t o r d e r i s l i m i t e d to assessing I CE’s determination of the factual predicates for reinstatement: “(1) [ that] petitione r is an a lien, (2) who was subject to a prior removal o rder, a

nd (3) w ho i l l e gally reentered the United States.” M

orales-Izquierdo v. G onzales

, 486 F .3d 484, 495–96 (9th Cir. 2007) (en banc).

Under 8 C.F

. R. § 241.8(a), the reg ulation implementing 8 U.S.C. § 1231(a)(5), the deter m i n ation whether an alien
meets the f

a c t u a l p redicates for reinstatement is made by an immig ration ag ent, not a judg e ; an alien has no rig ht to be heard by a judg e prior to reinstatement of a remova l o r d e r. See Morales-Izquierdo , 486 F .3d at 493–95, 497 (upholding

u n d er th is ch ap ter, an d t

h e alien sh all b e rem o v ed u n der th e p rio r o rd er at an y

tim e af ter th e reen try

.

8 U.S.C. § 1 23 1 (a)(5 ).

3 A l th o u g h § 1 2 3 1 (a)(5 ) lim its th e sco p e o f j u d icial rev iew o f rein stated

rem o v al o rd ers, § 1 2 5 2 (a)(2 )(D) rein states th is co u rt’ s j u risd ictio n ov er certain co n stitu

tio n al claim s an d q u estio n s of law

. S ee Ga rcia d

e Rin co n , 5 3 9 F.3 d at 1 1 3 8 (citin g § 12 52 (a)(2 )(D)); see also Ma rtin ez-Merin o v. Mu ka sey , 52 5 F.3 d 8 0 1
, 8 0 4 (9 th Cir. 2 0 0 8) (ap p ly in g a g ro ss m iscarriag e

o f j u stice stan d ard w ith o u t d ecid in g w h eth er § 12 5 2 (a)(2 )(D) “ v e s t s c i r c u i t

co u rts w ith th e ab ility to rev iew rein stated rem o v al o rd e r s ” ) ; L o ren zo v. Mu ka sey , 5 0 8 F .3 d 1 2 78
, 1 2 8 2 (1 0 th Cir. 2 00 7 ); Deb ea to v. Att’y Gen

. o f th e U.S

. , 5 0 5 F.3 d 2 3 1
, 2 3 5 (3 d Cir. 2 0 0 7 ); Ra mirez-Mo lin a v. Zig la r , 4 3 6 F.3 d 5 0 8
, 5 13

– 1 4 (5 th Cir. 2 0 0 6 ); cf. Ro b led o -Go n za les v. Ash cro

ft

, 3 4 2 F.3 d 6 6 7
, 6 82 n .1 3 (7 th Cir. 2 0 0 3 ) (d iscu ssin g th e g ro ss m iscarriag e

o f j u stice stan d a r d ap p lied to co llateral attack s o n p rio r d ep o rtatio n p ro ceed in g s).V I L L A -A N G U I A N O V

. H O L D E R 9

the validity o f 8 C.F

. R. § 24 1

. 8 u n der the I NA a nd the Constitution). An alien is, however, entitled to notice and an opportunity to make “a written or oral statement contesting the determination.” § 241.8( b ). Althoug h we have held that this streamlined reinstatement procedure does not offend d ue process, we e x pressly “[ left] op en the possibility that individual p etitioners may r aise procedural def ects in their particular cases.” Morales-Izquierdo , 486 F .3d at 496.

Even thoug h an alien is not entitled to a hearing before an immig ration judg e on the issue of reinstatement o f a prior

r e moval order, nothing in 8 U.S.C. § 1231(a)(5) o r i t s implementing reg ulations deprives the ag ency o f discretion
to afford an a lie n a n ew plenary removal hearing

. “Reinstatement of a prior order of removal is not automatic.” Alcala v. Holder , 563 F .3d 1009, 1013 ( 9th Cir. 2009). Nor is it oblig a tory : “Under 8 U.S.C. § 1231(a)(5), if the Attorney General finds an alien has reentered this cou n t r y illeg ally

a f t er having been removed

. . . the prior o rder ca n b e reinstated f

r om its orig inal date,” provided the requirements of 8 C.F

. R. § 241.8(a) and (b) have been sati s f i e d

. I d. (emphasis added); accord Galindo-Romero v. H older

, 640 F .3d 8 73, 879 (9th Cir. 2011). Particularly when there is
any question about whether the requirements of § 2 41.8 have been satisfied, and even when they have been, an I CE officer
may d ecide to forg o reinstatement of a prior order of removal in favo r of initiating new removal proceeding s, w ith the
accompany

ing procedural r ig hts t o c ounsel and a hearing in immig ration court. See 8 U.S.C. § 1229a(b)(4) (describing an alien’s rig h ts in removal proceeding s).

I CE reg ularly ex e rcise s “prosecutorial d iscretion” in “a broad ran ge of discretionary enforcement decisions,” including “deciding to issue, reiss u e, serve, file, or cancel aV I L L A -A N G U I A N O V

. H O L D E R 10

Notice to Appear (NTA) [and]

. . . seeking ex pedited removal

or other forms of removal by means other than a formal removal proceedi n g in immig ration court.” Memorandum fr o m Jo h n M o rton, Director, I CE, on Ex ercising Prosecutorial D i s c r e t i o n C o n s i s t e n t w i t h t h e C i v i l I m m i gr a t i o n Enforcement Priorities of the Ag ency for the Apprehe n sion, Detention and Rem o v a l o f Aliens, at 2 (J une 17, 2011). I mmig r a t i o n officers “who have authority to institute immig ration removal proceedi n g s or to otherwise eng ag e in civil immig ration enforcement,” id. at 3, “are not o n l y authoriz ed by law but ex p ected to ex ercise discretion in a judicious manner a t all stag es of the e nforcement process,” M e m o r andum from Doris Meissner, C o m m i s s i o n e r, I mmig r a ti on and Naturaliz ation Service, on Ex ercising Prosecutorial Discretion, at 1 (Nov. 17, 20 0 0 )

. Thus, I CE
ag ents, to whom § 1231(a)( 5 ) d e leg a tes the decision to reinstate a prior removal order, may ex ercise their discretion not to pursue streamlined reinstatement procedures.

I I I

.

Villa does not contest the f a c t u al predicates for the reinstatement order. Nor has he asserted a g ross miscarriag e of justice in the underly ing immig ration hearing

, which could justify this c ourt’s review of the constitutionality of the prior

remov a l o r der. 4 I nstead, Villa challeng es the propriety o f

4 T h e g o v ern m en t co n ten d s th at ev e n i f w e h ad j u risd ictio n to rev iew Villa’ s 1 9 9 7 rem o v al o rd er u n d er § 1 2 5 2 (a)(2 )(D), t h a t j u risd ictio n al

sav in g s c l au se d oes n ot ap p ly w h en an alien ’ s p etitio n f or rev i ew is

u n tim ely u n d er § 1 2 5 2 (b )(1 ), b ecau se n o t f iled w ith in t

h irty day s o f th e f in al ord er o f rem o v al. B ecau se th is case d o es n o t d irectly i nv o lv e a ch allen g e to t

h e 1 9 9 7 ord er, see s u

p ra n o te 1
, w e n eed n o t d ecid e w h eth er § 1 2 5 2(b )(1 ) w o u ld p reclu d e su ch rev iew

.V I L L A -A N G U I A N O V

. H O L D E R 11

reinstating a removal order that has been i n v a l idated on constitutional g rounds f

or purposes o f criminal prosecution. 5

This precise situation has not arisen in any reported cases

o f w hich w e are aware. The g overnment ex plained at o ra l
arg ument a likely reason for that g ap: “I n many cases where the district cou r t d o es dismiss the indictment [ I CE officers]
g o ahead and put the alien in reg ular r emoval proceeding s.” That is, rather than r einstating an order found to be an invalid predicate for a criminal reentry prosecution, the ag e ncy often

ex e r cises its discretion to initiate plenary removal proceeding s (with the r equisite n o t ice, hearing before an immig ration judg e, rig ht to appeal to the B o ard o f I mmig r a tion Appeals, and rig ht to seek judicial review in a court of appeals), following dismissal of a § 1326 indictment because of a successful collateral attack on the underly ing removal o r der. See 8 U .S.C. § § 1229, 1229a. Here, however, I C E re instated Villa’s p rior order and ex ecuted it as soon as his criminal case was d ismissed, without providing Villa an opportunity to ex plain the developments in district court o r correct any misimpressions reg arding those de v e l opments, and, it appears, without indepen d en tly reconsidering its use of ex pe d ited proceeding s in lig ht of the constitutional

5 J u d g e T allm an accu ses u s of ad v o cacy , o n th e th eo ry th at “ Villa f ailed
to m ak e th is du e p ro cess ch allen g e in h i s b rief in g .” Dissen t at 2 7 ; see a l so Dissen t at 2 2 n .1

. No t s o

. B ef ore th is C o u rt, Villa co m p lain ed th at im m ig ratio n o f

f i cials “d i d n o t p ro v id e

. . . a m ean in g f u l o p p o rtu n ity to

co n test th e rein statem en t ” o f h is rem o v al o rd er, as 8 C.F.R. § 2 41 (b ) ty p ically p ro v id es, an d h e s o u g h t rem an d “ f o r p ro ceed in g s th at co m

p o rt

w ith Co n stitu

tio n al d u e p ro cess.” Oth erw ise, rein statem en t am o u n ted to

“ a co n tin u ed v io latio n o f

. . . Co n stitu tio n al d u e p ro cess rig h ts.” Villa th u s asserted a co n stitu

tio n al v io latio n cu rab le o n l y t h ro u g h ad d itio n al pro cess,

co n sisten t w ith § 2 4 1

. 8 ( b ). W e th eref o re m u st, an d d o , ad

j u d icate th e

m erits o f th at assertio n

.V I L L A -A N G U I A N O V

. H O L D E R 12

infirmities in th e u n d erly ing immig r ation hearing identified by the district court.

As ex p lained, an incorrect statement on the addendum to the F orm I -213 states th a t V i l l a served time for a § 1326 conviction. T his statement indicates that the immigr a t i on ag ents responsible for ex ecuting Villa’s reinst at e m e nt order

were e ither unaware o f

, or misinformed about, the d i s t rict court’s finding s reg a

r ding the prior removal proceeding s, a nd

so a l m o s t surely d id not take them into account in determining how t o p r oceed. Certainly

, the F orm did not

ex p lain why Villa’s criminal case was d ismissed. 6 The
g overnment ag reed, at arg ument, that the ag en c y ordinarily would not have done what it did here.

To be sure, the pendency of r e i n statement proceeding s does not provide an alien with a new avenue to challeng e the underly ing removal o rder. As we made c l e ar in MoralesIzquierdo

, allowing an alien to manufacture an opportunity to contest his earlier r emoval by reentering the c ountry illeg a lly

, thereby trig g ering removal proceeding s a n e w , would c reate perverse incentives. See 486 F .3 d a t 498. B ut we have not considered a situation like the present on e, in w hich the
g overnment itself i nvites judicial scrutiny of the underly ing

6 J u d g e T allm an ’ s co n trary read in g o f t h e I- 21 3 ad d en d u m in terp o lates

w o rd s f o u n d n o w

h ere in th e actu al l a n g u a ge

. Co mp a re I- 2 1 3 Fo rm ad d en d u m (Villa “ served 15 6 d ay s co n f in em en t in f

ed eral cu sto dy f

o r vio la tio n o

f 8 USC 1 3 2 6 (a)”), with Dissen t at 2 6 n .4 (co n clu d in g th at “ th e

o f f icer n o t ed Villa h a d b een d eta in ed f o r 1 5 6 d ay s a wa itin g t

ria l o n th e ch a rg e th at h e vi o lated § 1 3 26

. . . .” (em p h ases ad d ed )). J u st as w e

assu m e in oth er co n tex ts th at “ a re a s o n ab ly co m p eten t p u blic o f f icial sh o u ld k n o w t h e l aw ,” Ha rlo w v. Fitzg era ld

, 4 5 7 U.S. 8 0 0
, 8 1 9 ( 1 9 8 2 ),

w e also assu

m e th at im

m i g rati o n o f

f icials k n o w th e leg al dif

f eren ce b etw een serv in g tim e f

o r a p articu lar v io latio n

an d aw aitin g trial.V I L L A -A N G U I A N O V

. H O L D E R 13

removal o rder by ins t ig ating a criminal prosecution under § 1326. W e conclude that when, as a result of such scrutiny

, a district court find s c o nstitutional infirmities in the prior removal proceeding s tha t invalidate the prior removal for
p urposes of c riminal prosecution, the ag ency c annot s i m p l y rely o n a pre-prosecution determination to reinstate the prior removal order. I n s t e ad the ag e ncy must—as it may w ell ordinarily do—(1) provide the a lien w ith an opportunity after the criminal p rosecution is dismissed to make a wr i t t e n o r oral statement addressing t he ex pedited reinstatement de t e r mination in lig ht of the facts found a nd the leg al

conc l u s i o n s reached in the c ourse of the criminal c ase; a nd (2) independently reassess whether to rely on the order issued in the prior proceeding s as the b asis f o r deportation or instead to instig ate full removal proceeding s. 7

W e so conclude for the following r easons: The reg ulation implementing 8 U.S.C. § 1231(a)(5) requires the immig r ation officer effecting reinstatement to “co n s ider all relevant evidence, including statements made by the al ien and any evidence in the alien’s possession.” 8 C.F .R. § 241.8(a)(3). The alien must be a llowed to make a statement contesting the reinstatement determination, and the officer “shall consider whether the alien’s statement warrants reconsideration of the determination.” § 241.8(b).

Those r eg ulatory r equirem en ts respect an unlawfully present alien’s r i gh t t o be heard prior to removal, a rig ht which the Supreme Court has long recog n iz ed as g rounded in

7 On ce ICE co m

p lies w i th th ese c o n stitu

t io n al req u irem en t s, it m ay

ex ercise its law f

u l d iscreti o n h o w ev er i t s ees f it. In th is sen se, w e ag ree

w ith o u r d issen tin g co lleag u e th at th e ag en cy n eed n o t “ reach a d if

f eren t

resu lt” o n rem an d . Dissen t

at 2 8

.V I L L A -A N G U I A N O V

. H O L D E R 14

the Due Process Clause. 8 D ue p rocess, in turn, e ntitles a n unlawfully present alien to c o nsideration of issues relevant to the ex ercise of an immig ration officer’s discretion. LaritaMartinez v. INS
, 220 F

. 3 d 1092, 1095 (9th Cir. 2000), for

ex a mple, held t hat due process required the B oard o f I mmig r a tio n A p peals to consider “all relevant evidence submitted on appeal” w h e n reviewing the wholly discretionary denial of an application for suspension o f deportation. 9

8 S ee, e.g

. , Ch ew v. Co ld in g , 3 4 4 U.S. 5 9 0, 5 9 7

– 9 8 (1 9 5 3 ) (“ A lth o u g h Co n g ress m ay p rescrib e co n d itio n s fo r [ a n alien ’ s] ex p u lsio n an d d ep o rtatio n , n o t ev en Co n g ress m ay ex pel h im w ith o u t allo w in g h im a f air

o p p o rtu n ity t o b e h eard .”); Y a ma ta ya v. Fish er , 1 8 9 U.S. 8 6
, 10 1 (1 9 0 3) (“ [I]t i s n o t co m

peten t f o r

. . . an y ex ecu tiv e of

f icer

. . . arb i trarily to cau s e

an alien w

h o h as en tered th e co u n try , an d h as b eco m e su b j ect i n all
resp ects to its j u risd ictio n , an d a p a r t of its p o p u latio n , alth o u g h alleg ed
to b e illeg ally h ere, to b e tak en in to cu sto dy an d d ep o rted w ith o u t g iv in g h im all o p po rtu n ity to b e h eard u p o n th e q u estio n s in v o lv in g h is rig h t to b e an d rem ain in th e Un ited States.”); cf. S h a u g h n essy v. Un ited S ta tes ex rel. M ezei
, 3 4 5 U.S. 2 0 6
, 2 1 1 (1 9 5 3) (“ [A ]lien s w h o h av e o n ce p assed th ro u g h o u r g ates, ev en illeg ally

, m ay b e ex p elled o n ly af ter p ro ceed in g s

co n f o rm in g to tr a d i t i o n al stan d ard s o f f airn ess en co m

p assed in du e p ro cess o f

law .”).

9 T h e dissen t m arsh als Heckler v. Ch a n ey , 4 7 0 U.S. 8 21
, 8 3 1 (1 9 8 5 ), to d isp u te th e ex isten ce o f an

y co g n izab le lib erty in terest “ in h ow an ag en cy

ex ercises its p u rely d iscretio n ary d ecisio n o n w h eth er to p ro secu te.” D i s sen t at 2 3

. Heckler

, h o w ev er, h eld o n ly th at an ad m i n istrativ e ag en cy ’ s d ecisio n n o t t o act w as u n rev iew ab le u n d er 5 U.S.C. § 7 0 1 (a)(2 ),

ex p lain in g “ w

h en an ag e n c y ref

u ses to act i t g en erally d o es n ot ex ercise its co ercive p o w er o v er an in d i v i d u a l ’s lib erty o r p ro p erty ,” an d th u s leav es th e co u rts w ith little to rev i ew

. Heckler

, 4 7 0 U.S. at 8 32
, 8 3 7

– 3 8

. In co n trast, w

h ere, a s h e r e, an ag en cy h as tak en o r is p ro p o sin g to tak e actio n , “ th at actio n itself pro v id es a f o cu s f o r j u dicial rev iew .” Id

. at 8 3 2

. H e c k l e r th u s d oes n o t reliev e th e co u rts o f th eir d u ty to rev iew t h e

co n stitu tio n ality o f ag en cy a ctio n , w h eth er d iscretio n ary o r o th erw ise,

w h en called u p o n to d o so

.V I L L A -A N G U I A N O V

. H O L D E R 15

F or the requirements o f § 241.8(a)(3), (b) to function a s the r equisite “procedural safeg uards” of the alien’ s r ig ht to due process in the contex t of streamlined proceeding s, see Morales-Izquierdo

, 486 F

. 3d a t 496, they must apply at the relevant time. “The f

undamental requirement of due process is the o pportunity to be heard at a meaning ful time a n d in a meaning ful manner.” Mathews v

. Eldri d g e , 4 24 U.S. 319, 333 (1976) ( internal quotation marks omitt ed). F or Villa to have had a meaning f

ul opport unity to address the proposed reinstatem e n t of his removal order, then, he must have been afforded that opportunity at a time and in a manner that would allow him to present pert i n e n t information. As the government indicated a t oral arg ument, the district court’s invalidation of Villa’s 1997 removal order as a b asis for § 1326 p r osecution, due to constitutional infirmities in the

or i gi n a l removal proceeding s, is ordinarily pertinent to the
ag ency ’s d ecision as to whether and how to proceed with his removal.

Moreover, the ag ency m u s t c onsider all favorable a nd unfavorable factors relevant to the ex ercise of its discretion; failure to do so constitutes an abuse of discretion. See An Na Peng v

. Holder

, 673 F .3d 1248, 1253 (9th Cir. 2012) (the B I A abuses its d iscretion w h e n it fails to consider all relevant factors bearing on the balance of equities or an application for relief); Xiao Fei Zheng v. Holder

, 6 44 F .3d 829, 833 (9th Cir. 2011) (same); cf. Un i t ed States v. $ 11,500.00 in U .S. Currency
, 710 F .3d 1006, 1011 (9th Cir. 2 013) ( a d i s t rict
court abuses i t s discretion if it fails to consider f actors relevant to the e x e rc i s e of its discretion). I f the procedures used by I CE do not assure that the decision-makers obtain the requisite information be fore the decision is made, then it is unlikely that the d ecision made will b e a p roper one under the abuse of discretion standard.V I L L A -A N G U I A N O V

. H O L D E R 16

The Third Circuit has considered a somewhat analog ous circumstance, in which a n alien contested r einstatement on the a sserted g ro u n ds that his p rior removal order was invalidated by a court and that he d id not reenter the country illeg ally

. See Ponta-Garci a v

. Att’y Gen. of the U.S.
, 557 F .3d 158, 164 (3d Cir. 2009). Recog ni z i n g t h e petitioner’s aty

pical circumstances, the Third Circuit remanded the case to I CE fo r consideration of the alien’s assertions. Id. at 165 (citing 8 C.F .R. § 241.8(a)(3)). The
court observed that althoug h r einstatement pursu a nt to the streamlined proce d

ures a d opted by Cong ress will be

unco n t ested in most cases, in the unusual instance in which

a petitioner raises i s s u e s that could affect whether I CE
pursues removal without a prior hearing

, “mo r e i s r equired [ from the ag ency ] than it appears was done here.” Id.

I V.

The g overnment acknowledg es that, had it known of the district court’s finding s, it quite possibly wo u l d h ave

ex e r cised its discretion not to pursue r einstatement of Villa’s 1997 removal order. Consequently

, Villa was prejudiced b y the I CE ag ents’ misinformation or lac k o f information
reg arding his criminal prosecution, as well as by the absence of an o pportunity to contest the reinstatement determination
at a meaning ful time—namely

, before the reinstatement order finally i s s u e d and was ex ecuted, and after new, relevant circumstances had arisen. According ly

, w e remand to I CE to provide that opportunity and to reconsider its reinstatem ent determination in lig ht of the district court’s finding s reg arding Villa’s 1997 removal proceeding s. We ex press no view as to the outcome of that determination on remand.V I L L A -A N G U I A N O V

. H O L D E R 17

The petition is G RANTED
, the reinstatement o r der is VACATED, and we REMAND to I CE for reconsideration and further proceeding s consistent with this disposition.

TAL L MAN, Circuit J u dg e, dissenting :

The al i e n , a convicted killer who illeg ally re-entered the United States after his p rior deportation, has once ag ain been removed after the d istrict c ourt d ismissed h is 2008 criminal

r e -entry charg e because the 1997 removal order w a s technically flawed. Cong ress has b y statute strictly limited what p rocess is due to a p etitioner who re-enters after a prior deportation. Our court sitting en b a n c h a s carefully limited
t h e scope of our review of reinstated removal orders. Se e generally M

orales-Izquierdo v. Gonzales

, 486 F .3d 484 (9th Cir. 2007) (en banc). My colleag ues in the majority nonetheless create a new p ro c e dural rule by judicial leg islation, which the Supreme Court has held we may n o t do.

The majority holds that whenever the United Sta tes chooses to criminally p r o secute an alien who unlawfully entered t he country and fails in that prosecution, an immig ration offi c e r—who has a lready complied w ith all o f the statutory and reg ulatory requirements for reinstatement o f

a prior removal order—must g ive the alien a new opportunity
to implore the officer to d ecl i n e reinstatement and instead
open new r emoval p roceed i n g s. I t mig ht b e a perfectly sensible rule if Cong res s o r t h e ag ency prescribed it. B ut neither Cong ress nor the a g ency h as done s o

. I nstead, the majority ’ s n e w rule has only one source: the whole cloth from which the majority has woven it.V I L L A -A N G U I A N O V

. H O L D E R 18

The Supreme Court has told us it is “improper simply to impose deportation pr o c e d ures

. . . b ecause the reviewing
court may find them preferable.” Landon v. P l a s e ncia
, 459 U.S. 21, 35 (1982). I n a n effort t o i m p o s e its preferred procedures into I CE’s process for reinstatement of re m o val orders, the majority ha s d istorted constitutional due process requirements and un d e r c u t c ontrolling en banc precedent. I respectfully

dissent.

I

I n 1997, the g overnment removed Alejandro I srael V illaAng uiano (“Villa”) after he finished serving his sentence for

v o l u n tary manslaug hter. Villa d oes not dispute that he w a s the alien subject to t h a t removal order. Nor does he dispute that in 2001, h e knowing ly re-entered the country without permission and remained until he was apprehended o n May 3, 2008. And he c annot dispute that the g overnment provided him with n otice a

nd an opportunity to be heard reg arding the reinstatement o f his prior removal order—an opportunity he waived on May 4, 2 0 0 8
, when he sig ned underneath a ch ec k e d b o x stating

, “I do not wish to make a statement contesting this determination.”

The majority concedes that as o f t h at date, the
g overnment needed no m o r e to ex ercise its discretion to reinstate his p rior order of removal and summarily deport him from the United States. However, the immig rati o n o fficer could not r emove Villa immediately bec ause the United States op t e d to prosecute Villa for criminal re-entry under 8 U.S.C. § 1326. T he m a j o r i t y now h olds that when the
g overnment chose to criminally p r o s e cute Villa and the district court later dismissed the charg e after Villa broug ht a

c o l l a teral attack on the 1997 r emoval o rder, this c reate d aV I L L A -A N G U I A N O V

. H O L D E R 19

new requirement that the immig ration o f f i c e r g ive Villa y et another opportunity to be heard. The officer must ex tend this opportunity

, say s the majority

, not so that V i l l a may contest hi s e l ig ibility for reinstatement, but rather so that he may arg ue the ag ency

should ex ercise its prosecutorial discretion
to instead o pen new removal proceeding s. The majority must concede this requirement h as no basis in either statutory o r reg ulatory

law. B ut it concludes I CE nonetheless abused its discretio n and remands so the ag ency must reconsider its prosecutorial decision, even thoug h Villa is long g one.

The reinstatement statute requires the D e p artment o f H o m eland Security to do nothing more to reinstate the removal order that Villa knowing l y flaunted. I n 8 U .S.C. § 1231(a)(5), Cong ress “ex plicitly insulate [ d] the removal orders from review[ ] and g enerally foreclose[ d] discretionary relief from the terms of the reinstated o r der.” Fernandez Vargas v. Gonzales

, 548 U.S. 30, 35 ( 2 0 0 6). The statute provides in no uncertain terms:

I f the Attorney General finds that an alien has reentered the U nite d States illeg ally a fter having been r emoved or having departed voluntarily

, u nder an order of rem o v a l

, the
pr i o r order of removal is reinstated from its orig i n a l date a

nd is not subject to being reopened or reviewed, the alien is not elig ible and may not apply for a n y relief under this chapter, and the alien shall be r emoved under the prior order at any

time after the reentry

. 8 U.S.C. § 1231(a)(5).V I L L A -A N G U I A N O V

. H O L D E R 20

The Department o f Homeland Security has prom u lg ated 8 C.F .R. § 241.8 to implement the reinstatem e n t s t a tute. Under the reg ulation, the immig ration officer who issues the reinstatement order must analy z e three criteria.

F irst, the officer must confirm t h a t the alien has been subject to a p ri o r o r d e r o f removal. 8 C.F .R. § 241.8(a)(1). This requires the officer to obtain th e p r i o r order, which the officer in this case did.

Second, the officer must co n f irm the identity of the alien—that is, make su re that the person in question and the alien w ho was previou s l y removed are in fact one and the

same. Id. § 241.8(a)(2). Villa d oes n ot di s pute that the officer did this too.

Third, the officer must confirm that the alien “unlawfully reentered the U nited States.” T o do this, th e o f ficer must “consider all relevant evidence” and at t e m p t to verify any claim that the alien “was lawfully admi t t e d

, ” including a check of any databa ses a vailable to the o f ficer. Id. § 241.8(a)(3). Villa, of course, made no such claim, a nd h ow could he? Subject to a removal order that r equired him to stay outside of the U nited States, Villa nonetheless surreptitiously re-entered the country

. He did so without the permission of the United States g overnment. He therefore reentered the country

“unlawfully .”

The district court proceeding s could not render Villa’s reentry “lawful.” The district court had jurisdiction o n l y to determine whether Villa’s re-entry was criminal

, not whether it was l a wful

. The district court’s c onclusion that Villa did

n ot commit a new c rime in no way alters the inquiry for the immig ration officer conducti n g a reinstatement, which isV I L L A -A N G U I A N O V

. H O L D E R 21

simply : did this alien violate a removal order when he entered the United States? The answer unquestionably is y es. Villa unlawfully re-entered the United State s

. I f the ag ency decides he must g o, then he must g o.

Therefore, both the laws enacted by Cong ress and the Department of Homeland Security ’s permissible const r uction of those laws allowed the immig ration officer to r e i n s t ate Villa’s prior order of removal, reg ardless of whether the district court concluded that Villa’s re-entry also constituted a federal crime. On the limited review we may conduct of a reinsta t e m e nt proceeding

, this suffices to deny relief. Morales-Izquierdo , 486 F .3d at 491.

I I

The majority implicitly ag rees t h a t under the law as it currently stands, V illa is eligible for r einstatement. My colleag ues must acknowledg e that althou gh a district court may determine that a removal order does not validly support

a criminal prosecution, that same court has no jurisdiction to g rant relief from an administrative o rder of removal. The majority also knows t h a t u n der our en banc decision in Morales-Izquierdo v. Gonzales

, we do not al l o w a liens w ho have defied r e moval orders and re-entered the United States
to put themselves in a better p osition than aliens “who respect

our laws a

nd wait p atiently o u tside our borders seeking lawful admission.” 486 F .3d at 498. So without any statutory

or reg ulatory foundation to g rant r elief, the majority fa l l s back on a dubious procedural due process analy sis.

I f I understand the majority arg ument, it proceeds in three steps. F irst, the immig ration office r h a s t h e discretion to choose to initiate new removal proceeding s instead o fV I L L A -A N G U I A N O V

. H O L D E R 22

reinstatement, even if the alien is, by s t a tute, already susceptible t o i m mediate reinstatement. Second, if the district court d ismisses the criminal c harg e for illeg al r e-entry because the alien demonstrated fu n d amentally unfair infirmities in the orig inal deportation o rder, the immig r ation officer may b e more likely to start new removal proceeding s instead of choosing r e i nstatement. T herefore, if the alien succeeds in his defense to the criminal ch ar ge , the Due Process Clause now requires the immig r ation officer to g ive the defendant y et another opportunity to be heard—not to arg ue that the alien is inelig ible for r einstatem e n t (because 8 U.S.C. § 1231(a)(5) and 8 C.F .R. § 241.8 both say Villa

c l e a r ly is elig ible), b ut to instead arg ue that n e w removal proceeding s w ould be the more sensible ex ercise of the
ag ency ’s prosecutorial discretion. 1

O n e very important analy tical step is missing : t h e majority provides nex t to no analy sis reg arding why the Due Process Clause c ompels such a r esult. S u r e , the majority affords us a cursory citation to Mathews v. Eldridge

, 4 24 U.S. 319 (1976), a case g o verning the inte r es t in Social Security benefits, “a statutorily created ‘property ’ interest.” Id. at 332. B ut it provides no case telling u s why the Due Process Clause requires that an ag ency must provide an a lien the opportunity

1 T h e m aj o rity ’ s d u e p ro cess arg u m en t i s a n ice p iece o f ad v o cacy —an d

an arg u m en t I f

ail to f in d an y w h ere in Villa’ s b rief

in g

. I th o u g h t th e ru le

w as t h at p etitio n ers f

o r relief w a i v e a n y arg u m en ts th ey f ail to raise in b rief in g , see Lo

p ez-Va sq u ez v. Ho ld

er , 7 0 6 F.3 d 1 0 7 2
, 1 0 7 9 –8 0 (9 th Cir. 2 0 1 3 ) (“ L o p ez- Vasq u ez w aiv ed h is ch allen g e to th e B I A ’ s d en i al o f h is

m o tio n to reo p en b y f

ailin g t o a r gu e it in h i s b rief .”), b u t th e m aj o rity b eliev es a f

ew scattered ref

eren ces to “ d u e p ro cess” d o all th e n ecessary

w o rk

. T h e g ov ern m en t, m ean w h ile, w as n o t p ro v id ed an y m ean i n g f u l

o p p o rtu n ity to re s p o n d to th e su b s tan ce o f th e du e p ro cess arg u m en t th e

m aj o rity h as n o w co n j u red in t o an o p i n io n

.V I L L A -A N G U I A N O V

. H O L D E R 23

to tell the ag ency how it should ex er c i s e its prosecutorial discretion.

A lthoug h aliens a

r e entitled to due process of law

, t h e y “must in the first insta n c e possess a liberty or property interest.” Valencia-Alvarez v. Gonzales

, 469 F .3d 1319, 1330 n.13 (9th Cir. 2006). Althoug h we have considered aliens to have such an interest when they are elig ible for discretionary relief from r emoval, we certainly have n ever h eld they have
any liberty or property interest in how an ag ency e x e rcises its purely discretionary d ecision on whether to prosecute. “[ A] n

a g ency ’s decision not to prosecute o r enforce, wheth e r throug h civil or criminal process, is a decis ion g enerally committed to an ag ency ’s absolute discretion

. ” H e ckler v

. Chaney

, 4 70 U.S. 82 1
, 8 31 ( 1985). This common-sense conclusion derives from the steadfa s t p r inciple that even citiz ens are not “entitled to judicial oversig ht or review of the decision to prosecute.” Albright v. Oliver

, 510 U.S. 2 66, 274 (1994) (quoting Gerstein v. Pugh

, 420 U.S. 103, 114 (1975)). J ust as a criminal suspect has no p rocedural due process rig ht
to a hearing before a prosecutor to a rgu e f or a more lenient charg e, V illa p ossesses no rig ht t o p lead for any more than the law provides. T his is a fundamental separation of powers issue, which the majority ig nores w h e n declaring remand is nonetheless required because the ag ency somehow abused its absolute discretion.

“W hile aliens have a rig ht to fair p rocedures, they have no constitutional rig ht to force the g overnment to r e-adjudicate

a final removal order by unlawfully reentering the c o u n t ry

. ” Morales-Izquierdo

, 486 F .3d at 498. I n a reins t atement proceeding

, “ an alien’ s r i g h ts and remedies are severely l i m ited.” Id. at 497. Villa p ossesses no fewer rig hts today

, having h ad his removal order rei nstated, than he did the dayV I L L A -A N G U I A N O V

. H O L D E R 24

he unlawfully re-entered the country because “[ t] he reinstatement order imposes no civ i l o r criminal penalties,
creates no new obstacl es t o attacking the validity of the removal order, and does not d i m i nish petitioner’s access to whatever path for lawful e n t r y into the United States mig ht otherwise be available to h im under the immig ration l a ws

. ” Id. at 498 (citations omitted).

Those laws g rant V illa no entitlement to new removal proceeding s. Perhaps Villa w o uld possess a more concrete interest if the ag ency ’s r eg ulations in any way spelled out this discretion which the majority insists the ag en c y reg ularly practices. 2 Yet the majority cites no statute or reg ulation that delineates the criteria by w h i c h the ag ency must e x ercise its prosecutorial discretion specifically in the contex t o f reinstatement—or that spec ifies how Villa’s successful defense at his criminal trial should impact that discretionary administrative decision whether to on c e ag ain remove him. The majority instead misleading ly cites to the requirement in 8 C.F .R. § 241.8(a)(3) that the immig ration officer “consider all relevant evidence,” w hen it c an easi l y ascertain that the
reg ulation only requires the offi c er to consider all evidence

r elevant to determining whether the alien unlawfull y r e

e n t e r ed the country

—which Villa unquestionably did. T h e district c o u rt ’s conclusion in sustaining his challeng e to the criminal indictment was irrelevant to that ad m inistrative determination.

2 T h e ab s en ce of an y statu to ry o r reg u lato ry s t a n d a rd w h atso ev er estab lish in g th is d is c r e t i o n easily d istin g u ish es th is case f ro m La r ita

Ma rtin ez v. INS
, 2 2 0 F.3 d 10 9 2 (9 th C ir. 20 00 ), w h ere f ed eral l aw clearly estab lish ed th e p etitio n er’ s rig h t to seek su sp en sio n of d ep o rtatio n , ev en if it w as “ w

h o l ly d iscretio n ary ,” an d th e alleg ed v io latio n o ccu rred d u rin g

an ap p eal to th e B IA , w

h ich w as p ro v id ed to th e p etitio n er b y law

.V I L L A -A N G U I A N O V

. H O L D E R 25

To the ex tent the maj o r i t y r elies on an internal I CE

m e m o r a n d u m

— w h i ch d o e s n o t s p e c i f ically addre s s reinstatement—“[ i] t is well settled that intern a l p olicy manuals of federal ag e n c i e s do not g enerally create d ue process r ig h ts in o thers.” James v. U .S. Parole Comm ’n
, 159 F

. 3d 1200, 1206 (9th Cir. 1998). The memorandum itself

ex p lains that “t h ere is no rig ht to the favorable ex ercise o f discretion by the ag ency ,” and therefore t he memorandum cautions that it “may n ot be relied u pon to create any r ig ht o r benefit, substantive or procedural.” Memorandum from J ohn Morton, Director, I CE, on Ex ercising Prosecutorial D i s c re t i o n C o n s i s t e n t w i t h t h e C i v i l Im m i g r a t i o n Enforcement Priorities of the Ag ency for the A pprehension, Detention and Removal of Aliens, at 6 (J une 17, 2011). 3

The standards that are a ctually set o u t in reg ulatory a nd statutory law establish that when I CE reinstates a n alien’s removal order, the alien o nly possesses a n interest in how the I CE officer r esolves three questions: (1) whet h e r the alien

was subject to a prior order of r emoval; ( 2) whether this alien is the alien described in that order; and (3) whether the alien illeg ally re-entered the country

. O n May 4, 2008, when he waived his opportunity to be heard, Villa and the ag ency possessed all of the information t h a t would be relevant to those three d eter m i n a t i o n s. His opportunity to be heard, at that time, could not have been more meaning ful.

3 T h at m em o ran d u m also su pp orts th e im

m ig ratio n o f

f icer’ s decisio n in Villa’ s case. T h e m em o ran du m lists s ev eral “ n eg ativ e f acto rs” th at sh ou ld

“ pro m p t p articu lar care an d c o n sid eratio n ” w h en ICE o f

f i cers are

“ ex ercisin g p ro secu to rial d iscretio n .” T h ey in clu d e “ serio u s f elo n s ” an d alien s lik e Villa- A n g u ian o “ w ith a reco rd o f i lleg al- re- en try .” Id

. at 5

. If th ese are th e f

acto rs th at in f

lu en ce th e ex ercise o f d iscretio n , h o w can m y

co lleag u es say

th at d iscretio n

w as ab u sed h ere?V I L L A -A N G U I A N O V

. H O L D E R 26

The majority ag rees that Villa meets all o f the requirements fo r reinstatement of a removal order under
current statutory and reg ulator y l a w and that he waived his opportunity to contest whether those requirements were met. So h o w c o u ld the ag ency have abused its discretion b y comply ing with federal la w ? R eg ardless of the answer, we lack jurisdiction t o r e v i ew a n abuse of discretion arg ument that is merely recharacteri z ed as a due process arg ument, Torre s-Aguilar v. INS
, 246 F .3d 1267, 1271 (9th Cir. 2001)—precisely

what the majority

opinion does. 4

To hold that Villa has a liberty i n t e r e st in any determination o ther than whether he u n l a w f ully re-entered the United States in d e f

iance of a removal order would “create a

new and wholly unwarranted i ncentive for aliens who have previously been removed to reenter the country illeg ally in order to take advantag e of this self-help remedy .” Moral esIzquierdo

, 486 F .3d at 498. B ecause there is no foundation in

our due process jurisprudence to hold that an alien p ossesses

4 T h ere is n o b asis fo r t h e m a j o rity ’ s co n clu sio n th at t

h e i m m ig ratio n

o ffi c i al p ro ceed ed o n b ad in f o rm atio n reg ard in g V illa’ s crim in al
p ro secu tio n

. T h e ad d en du m to th e Reco rd o f D ep o rta b l e / I n ad m issib le A lien stated th at V illa “ serv ed 1 5 6 day s co n f in em en t i n fe d e r a l cu sto d y f o r v io latio n o f 8 U SC 1 3 2 6(a) – Dep o rted A lien Fo u n d in Un ited States.” B u t th e f o rm a lso stated th at “ Su

b j ect’ s case w as d ismissed fo r vio l atio n

o f 8 US C 1 3 2 6 (

a )

– Dep o rted A lien F o u n d i n t h e Un ited States.” (em p h asis ad d ed ). If th e m aj o rity in ten d s to tak e th e f irst sen t en ce at f

ace

v alu e, th en it m

u st b eliev e as w ell t

h at th e “ reaso n ab ly co m p eten t” i m m ig ratio n o f

f icer so m eh o w b eliev ed th at Villa’ s co n v ictio n w a s d ismissed b ecau se th e co u rt f o u n d V illa vio la ted th e statu te. B u t th at can ’ t b e rig h t. It is m o re reaso n ab le to read th e t w o se n t e n c e s in co n

j u n ctio n

an d co n clu d e th at th e o f

f icer n o ted Villa h ad b een d etain ed f o r 1 5 6 d ay s

aw aitin g trial o n th e ch arg e th at h e v i o lated § 1 32 6
, an d th at f iv e m o n th s later th e co u rt d ism issed

th e ch arg e.V I L L A -A N G U I A N O V

. H O L D E R 27

such a rig ht, I cannot join a majority opinion that so casually accords this newly

minted rig ht to Villa.

Even if such a liberty inter e s t e x isted, an alien b ears the burden of proving the a lleg ed violation prejudiced his or her interest. Cano-Merida v

. INS
, 311 F .3d 960, 9 6 5 (9t h C ir. 2 0 0 2 )

. B ecause Villa f ailed to make this due proces s arg ument in his briefing

—which the majority has c hosen to

ex c u se a nd make for him—he made n o showing of prejudice. B ut the majority a

rg ues that prejudice ex ists because the
ag ency “quite possibly would have ex ercised its d i s cretion
not t o p ursue reinstatement of Villa’s 1997 removal order.” Majority Op. at 16.

This a ssertion opens Pandora’s box

. L et us not forg et that

as he stands today

, Villa—who c o mmitted a serious felony offense involving the taking of a life—cannot be criminally prosecuted for re-entering the United States. He can enter the country illeg ally as he pleases, and under his current removal order, the only

thing the United States g overnment can do is reinstate that order of removal and d ep o r t h im ag ain. I t is hig hly unlikely that in a ny new r emoval proceedi n gs , the
ag ency would g rant discret i o nary relief to a convicted killer who also ig nores prior deportations by returning illeg ally

. I t is far more likely that Villa would be removed once ag ain, but this time with a new removal order that would c a r r y heavy criminal consequences for his nex t re-entry

. Althoug h Villa has no rig ht to insist on such a proceeding

, the maj o r i t y has overstated th e d a m ag e, if any , that the reinstatement o f Villa’s removal order has caused to his interests.V I L L A -A N G U I A N O V

. H O L D E R 28

I I I

The majority conc edes a point that should be absolutely clear: on remand, I CE has absolutely no oblig ation to reach

a different result. Althou gh by now the g overnment has surely recog niz ed it cannot punish Villa with any thing more than deportation, it may , u n d e r 8 U .S.C. § 1231(a)(5) a nd 8 C.F .R. § 241.8, reinstate h is prior order of removal because Villa meets each of the statutory and reg u latory requirements for reinstatement.

The majority opinion amounts to no more than a t hinly veiled sug g estion, cloaked in the mantle of due process, that I CE reconsider its decision to r einstate the p rior removal order and instead open new removal proceeding s from which
y ears of litig ation will ensue. Perhaps that would be the most sensible course of action, so that nex t time Villa would have

no technical d e fense to a new felony conviction under § 1326. B ut that is a decision for the ag ency to make by balancing its interest in the use of i t s limited resources with its interest in

s e curing a r e moval order that can better support fut u r e

cr i m i n a l c harg es. Courts have no rig ht to dictate that

ex e c utive decision or to establish new criteria the Ex ecutive B ranch must employ

to make it.

The majority opinion unnecessarily intrude s on the Ex ecutive B ranch’s a dministration of immig ration p olicy a nd

no t only tells the Department of Homeland Security the criteria it must consider in the e x er c i s e of its prosecutorial discretion, but it also announces a n ovel holding that an alien who unlawfully re-enters the country h as a due process rig ht to influence the ex ercise of that prosecutorial discretion. I ts rule adds requirements that have no b asis in law. The Supreme Court has clearl y told us n ot to do this. Landon

,V I L L A -A N G U I A N O V

. H O L D E R 29

459 U.S. at 35. Rat h e r t h a n remand on the basis of these

nonex istent r equirements, I would deny r elief and leave Villa

no worse off than where he stoo d before he willfully defied his removal order and unlawf ully re-entered the country

. I respectfully

dissent.