FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALEJANDRO ISRAEL VILLAANGUIANO,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney

General,

Respondent.

No. 08-74585

Agency No.

A090-068-616

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

April 9, 2013—Pasadena, California

Filed August 14, 2013

Before: Marsha S. Berzon, Richard C. Tallman,

and Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Berzon;

Dissent by Judge Tallman
2 VILLA-ANGUIANO V. HOLDER

SUMMARY*

Immigration

The panel granted Alejandro Israel Villa-Anguiano’s

petition for review from the government's reinstatement of a

prior removal order, vacated the reinstated order, and

remanded the case to Immigration and Customs Enforcement. 

The panel held that, because the district court hearing the

criminal prosecution against Villa for illegal reentry

invalidated on constitutional grounds the prior removal order,

the government could not simply rely on a pre-prosecution

determination to reinstate the prior order. The panel held that

the agency must provide Villa with an opportunity to address

the expedited reinstatement determination, and that the

agency must independently reassess whether to rely on the

prior order or rather to instigate full removal proceedings.

Dissenting, Judge Tallman would deny relief. He would

find that the laws enacted by Congress, and the Department

of Homeland Security’s permissible construction of those

laws, allowed the immigration officer to reinstate Villa’s

prior order of removal, regardless of the district court’s

conclusion. Judge Tallman also wrote that the majority

opinion announced a novel holding that an alien who

unlawfully re-enters the country has a due process right to

influence the exercise of the Department of Homeland

Security’s prosecutorial discretion.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
VILLA-ANGUIANO V. HOLDER 3

COUNSEL

Karla L. Kraus (argued), Kraus Law Corporation, San Diego,

California, for Petitioner.

Carol Federighi (argued), Senior Litigation Counsel; Tony

West, Assistant Attorney General; William C. Peachey,

Assistant Director, United States Department of Justice, Civil

Division, Washington, D.C., for Respondent.

OPINION

BERZON, Circuit Judge:

Alejandro Israel Villa-Anguiano (“Villa”) petitions for

review of the government’s reinstatement of a removal order

issued in 1997. Villa contends that the Immigration and

Customs Enforcement (“ICE”) agency of the Department of

Homeland Security (“DHS”) may not deport him on the basis

of his prior removal order, because a federal district court

found that due process violations in his 1997 immigration

hearing rendered the removal order invalid as a predicate for

criminal prosecution under 8 U.S.C. § 1326.

We have jurisdiction under 8 U.S.C. § 1252(a)(1) to

review a reinstatement order, see Castro-Cortez v. INS,

239 F.3d 1037, 1044 (9th Cir. 2001), abrogated on other

grounds by Fernandez-Vargas v. Gonzales, 548 U.S. 30

(2006); accord Padilla v. Ashcroft, 334 F.3d 921, 924 (9th

Cir. 2003), and retain jurisdiction under § 1252(a)(2)(D) to

consider “constitutional claims or questions of law raised

upon a petition for review,” see Garcia de Rincon v. DHS,

539 F.3d 1133, 1137–38 (9th Cir. 2008). For the reasons
4 VILLA-ANGUIANO V. HOLDER

stated below, we grant Villa’s petition, vacate the

reinstatement order, and remand to ICE for further

proceedings.

I.

This case comes before us in an unusual posture. Villa,

who entered the United States from Mexico at the age of one,

became a lawful permanent resident in 1989. Following a

conviction for voluntary manslaughter in 1993 and service of

his stipulated sentence, Villa was ordered deported in 1997 at

a group hearing before an immigration judge in El Centro,

California. He was physically removed in 1999 but

subsequently reentered the United States without permission

in 2001. On May 3, 2008, Villa was arrested by local law

enforcement following a traffic stop. The next day, the

government determined that Villa was “subject to removal by

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 notice and an

opportunity to contest reinstatement on May 4, 2008, as

required by 8 C.F.R. § 241.8(b). His signature appears on the

Notice of Intent/Decision to Reinstate Prior Order form,

beside the statement, “I do not wish to make a statement

contesting this determination.” The government did not,

however, proceed at that point with the actual removal. 

Instead, the government decided to prosecute Villa for illegal

reentry.

Before the district court on the illegal reentry charge, and

now with the assistance of counsel, Villa collaterally attacked

his 1997 removal order. See 8 U.S.C. § 1326(d); United

States v. Mendoza-Lopez, 481 U.S. 828, 837–38 (1987)
VILLA-ANGUIANO V. HOLDER 5

(permitting an alien to seek review of the deportation order

used as a predicate element of an illegal reentry offense if he

was denied judicial review of prior removal proceedings). He

contended that due process violations in the underlying

removal proceedings precluded him from obtaining judicial

review of his 1997 deportation order. The government

conceded that Villa was eligible in 1997 for relief under

Immigration and Nationality Act (“INA”) § 212(c) and that

the Immigration Judge did not inform him of that fact. But,

the government argued § 212(c) relief was not plausible at the

time of the immigration hearing, which predated INS v. St.

Cyr, 533 U.S. 289 (2001), and thus Villa could not show

prejudice.

The district court rejected the government’s arguments,

finding: (1) that Villa had demonstrated a deprivation of his

right to counsel in the group immigration hearing; and (2)

that Villa was prejudiced by the resulting due process

violation, because he was eligible for relief under § 212(c) at

the time of his removal proceedings, and was not so

informed. Consequently, the district court held, “the outcome

of [his] immigration proceeding was potentially affected by

the denial of his right to counsel.”1 The court held the 1997

1

“[T]o mount a successful collateral attack on a prior removal order

under § 1326(d), an alien who was convicted of an aggravated felony and

was not properly advised of his right to counsel or did not waive this right

must show that he was actually prejudiced by this due process violation,”

United States v. Reyes-Bonilla, 671 F.3d 1036, 1049 & n.11 (9th Cir.

2012), cert. denied, 133 S. Ct. 322 (2012). At the same time, however, a

petitioner need not demonstrate prejudice as a result of a deprivation ofthe

right to counsel to prevail on a petition for review of a removal order. See

Montes-Lopez v. Holder, 694 F.3d 1085, 1086, 1090, 1093–94 (9th Cir.

2012).
6 VILLA-ANGUIANO V. HOLDER

removal order invalid as the predicate for criminal

prosecution under § 1326 and so, on October 9, 2008,

dismissed Villa’s indictment.

On October 10, 2008, the day after Villa’s criminal

proceedings were dismissed,immigration officials “reinstated

on today’s date” the “prior order of removal by an

Immigration Judge,” and Villa was physicallyremoved. Villa

was neither notified at that point that the order was going to

be issued and executed nor given an opportunity to object,

either in writing or orally, to the reinstatement. He was

denied such opportunity despite the very relevant

development that occurred in the five months since

reinstatement proceedings were initiated—namely, the

district court’s determination that the 1997 removal order was

constitutionally infirm.

ICE was aware of the criminal prosecution from the

outset. The Record of Deportable/Inadmissible Alien, Form

I-213, dated May 4, 2008, indicated that Villa was “being

held in DHS custody pending criminal prosecution for

violation of 8 U.S.C. § 1326.” But the addendum to the form,

Because Villa does not petition for review of the 1997 removal order

in this court, we need not determine at this stage whether he was plausibly

eligible for relief under § 212(c) at the time of his immigration hearing. 

In any event, the record does not contain sufficient information about the

nature of Villa’s criminal conviction or the equities of his case to enable

us to make such a determination. Nor need we resolve whether Villa must

demonstrate prejudice to obtain relief. Rather, as discussed infra, our

question is whether Villa’s reinstatement proceedings accorded him

adequate due process, given the discretion available to immigration agents

as to how to pursue removal of an alien following the alien’s successful

collateral challenge to the underlying removal order as part of a § 1326

prosecution.
VILLA-ANGUIANO V. HOLDER 7

dated October 10, 2008, reflects confusion regarding the

result of that criminal case. The addendum correctly noted,

“On October 09, 2008, Subject’s case was dismissed for

violation of 8 USC 1326(a) — Deported Alien Found in the

United States.” It went on, however, to state erroneously that

Villa “served 156 days confinement in federal custody for

violation of 8 USC 1326(a) — Deported Alien Found in the

United States,” implying that Villa had been convicted of

illegal reentry (emphases added). The addendum nowhere

indicated the grounds on which the § 1326 indictment was

dismissed or evidenced any awareness by ICE officials that

the district court had held the original removal order invalid. 

It concluded with the statement: “Subject’s prior order of

removal by an Immigration Judge will be reinstated on

today’s date.” Villa was immediately removed.

This petition for review followed.

II.

The INA’s reinstatement provision, 8 U.S.C § 1231(a)(5),

specifically bars relitigation of the merits of the reinstated

removal order—i.e. determination of an alien’s removability

or eligibility for relief.2 Accordingly, except where

 

2

 The provision 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 ofremoval,

the prior order of removal is reinstated from its original

date and is not subject to being reopened or reviewed,

the alien is not eligible and may not apply for any relief
8 VILLA-ANGUIANO V. HOLDER

constitutional claims or questions of law arise in the context

of reinstatement and “the petitioner can demonstrate a ‘gross

miscarriage of justice’ in the [original removal] proceedings,”

Garcia de Rincon, 539 F.3d at 1138,3our review of a

reinstatement order is limited to assessing ICE’s

determination of the factual predicates for reinstatement: “(1)

[that] petitioner is an alien, (2) who was subject to a prior

removal order, and (3) who illegally reentered the United

States.” Morales-Izquierdo v. Gonzales, 486 F.3d 484,

495–96 (9th Cir. 2007) (en banc).

Under 8 C.F.R. § 241.8(a), the regulation implementing

8 U.S.C. § 1231(a)(5), the determination whether an alien

meets the factual predicates for reinstatement is made by an

immigration agent, not a judge; an alien has no right to be

heard by a judge prior to reinstatement of a removal order. 

See Morales-Izquierdo, 486 F.3d at 493–95, 497 (upholding

under this chapter, and the alien shall be removed under

the prior order at any time after the reentry.

8 U.S.C. § 1231(a)(5).

3 Although § 1231(a)(5) limits the scope of judicial review of reinstated

removal orders, § 1252(a)(2)(D) reinstates this court’s jurisdiction over

certain constitutional claims and questions of law. See Garcia de Rincon,

539 F.3d at 1138 (citing §1252(a)(2)(D)); see also Martinez-Merino v.

Mukasey, 525 F.3d 801, 804 (9th Cir. 2008) (applying a gross miscarriage

ofjustice standard without decidingwhether § 1252(a)(2)(D) “vests circuit

courts with the ability to review reinstated removal orders”); Lorenzo v.

Mukasey, 508 F.3d 1278, 1282 (10th Cir. 2007); Debeato v. Att’y Gen. of

the U.S., 505 F.3d 231, 235 (3d Cir. 2007); Ramirez-Molina v. Ziglar,

436 F.3d 508, 513–14 (5th Cir. 2006); cf. Robledo-Gonzales v. Ashcroft,

342 F.3d 667, 682 n.13 (7th Cir. 2003) (discussing the gross miscarriage

of justice standard applied to collateral attacks on prior deportation

proceedings).
VILLA-ANGUIANO V. HOLDER 9

the validity of 8 C.F.R. § 241.8 under the INA and 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). Although we have held that

this streamlined reinstatement procedure does not offend due

process, we expressly “[left] open the possibility that

individual petitioners may raise procedural defects in their

particular cases.” Morales-Izquierdo, 486 F.3d at 496.

Even though an alien is not entitled to a hearing before an

immigration judge on the issue of reinstatement of a prior

removal order, nothing in 8 U.S.C. § 1231(a)(5) or its

implementing regulations deprives the agency of discretion

to afford an alien a new 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 obligatory: “Under 8 U.S.C. § 1231(a)(5), if the Attorney

General finds an alien has reentered this country illegally

after having been removed . . . the prior order can be

reinstated from its original date,” provided the requirements

of 8 C.F.R. § 241.8(a) and (b) have been satisfied. Id.

(emphasis added); accord Galindo-Romero v. Holder,

640 F.3d 873, 879 (9th Cir. 2011). Particularly when there is

any question about whether the requirements of § 241.8 have

been satisfied, and even when they have been, an ICE officer

may decide to forgo reinstatement of a prior order of removal

in favor of initiating new removal proceedings, with the

accompanying procedural rights to counsel and a hearing in

immigration court. See 8 U.S.C. § 1229a(b)(4) (describing an

alien’s rights in removal proceedings).

ICE regularly exercises “prosecutorial discretion” in “a

broad range of discretionary enforcement decisions,”

including “deciding to issue, reissue, serve, file, or cancel a
10 VILLA-ANGUIANO V. HOLDER

Notice to Appear (NTA) [and] . . . seeking expedited removal

or other forms of removal by means other than a formal

removal proceeding in immigration court.” Memorandum

fromJohnMorton, Director, ICE, on ExercisingProsecutorial

Discretion Consistent with the Civil Immigration

Enforcement Priorities of the Agency for the Apprehension,

Detention and Removal of Aliens, at 2 (June 17, 2011). 

Immigration officers “who have authority to institute

immigration removal proceedings or to otherwise engage in

civil immigration enforcement,” id. at 3, “are not only

authorized by law but expected to exercise discretion in a

judicious manner at all stages of the enforcement process,”

Memorandum from Doris Meissner, Commissioner,

Immigration and Naturalization Service, on Exercising

Prosecutorial Discretion, at 1 (Nov. 17, 2000). Thus, ICE

agents, to whom § 1231(a)(5) delegates the decision to

reinstate a prior removal order, may exercise their discretion

not to pursue streamlined reinstatement procedures.

III.

Villa does not contest the factual predicates for the

reinstatement order. Nor has he asserted a gross miscarriage

of justice in the underlying immigration hearing, which could

justify this court’s review of the constitutionality of the prior

removal order.4Instead, Villa challenges the propriety of

4 The government contends that even if we had jurisdiction to review

Villa’s 1997 removal order under § 1252(a)(2)(D), that jurisdictional

savings clause does not apply when an alien’s petition for review is

untimely under § 1252(b)(1), because not filed within thirty days of the

final order of removal. Because this case does not directly involve a

challenge to the 1997 order, see supra note 1, we need not decide whether

§ 1252(b)(1) would preclude such review.
VILLA-ANGUIANO V. HOLDER 11

reinstating a removal order that has been invalidated on

constitutional grounds for purposes of criminal prosecution.5

This precise situation has not arisen in any reported cases

of which we are aware. The government explained at oral

argument a likely reason for that gap: “In many cases where

the district court does dismiss the indictment [ICE officers]

go ahead and put the alien in regular removal proceedings.” 

That is, rather than reinstating an order found to be an invalid

predicate for a criminal reentry prosecution, the agency often

exercises its discretion to initiate plenary removal

proceedings (with the requisite notice, hearing before an

immigration judge, right to appeal to the Board of

Immigration Appeals, and right to seek judicial review in a

court of appeals), following dismissal of a § 1326 indictment

because of a successful collateral attack on the underlying

removal order. See 8 U.S.C. §§ 1229, 1229a. Here, however,

ICE reinstated Villa’s prior order and executed it as soon as

his criminal case was dismissed, without providing Villa an

opportunity to explain the developments in district court or

correct any misimpressions regarding those developments,

and, it appears, without independently reconsidering its use

of expedited proceedings in light of the constitutional

5

Judge Tallman accuses us of advocacy, on the theory that “Villa failed

to make this due process challenge in his briefing.” Dissent at 27;see also

Dissent at 22 n.1. Not so. Before this Court, Villa complained that

immigration officials “did not provide . . . a meaningful opportunity to

contest the reinstatement” of his removal order, as 8 C.F.R. § 241(b)

typically provides, and he sought remand “for proceedings that comport

with Constitutional due process.” Otherwise, reinstatement amounted to

“a continued violation of. . . Constitutional due process rights.” Villa thus

asserted a constitutional violation curable onlythrough additional process,

consistent with § 241.8(b). We therefore must, and do, adjudicate the

merits of that assertion.
12 VILLA-ANGUIANO V. HOLDER

infirmities in the underlying immigration hearing identified

by the district court.

As explained, an incorrect statement on the addendum to

the Form I-213 states that Villa served time for a § 1326

conviction. This statement indicates that the immigration

agents responsible for executing Villa’s reinstatement order

were either unaware of, or misinformed about, the district

court’s findings regarding the prior removal proceedings, and

so almost surely did not take them into account in

determining how to proceed. Certainly, the Form did not

explain why Villa’s criminal case was dismissed.6 The

government agreed, at argument, that the agency ordinarily

would not have done what it did here.

To be sure, the pendency of reinstatement proceedings

does not provide an alien with a new avenue to challenge the

underlying removal order. As we made clear in MoralesIzquierdo, allowing an alien to manufacture an opportunity to

contest his earlier removal by reentering the country illegally,

thereby triggering removal proceedings anew, would create

perverse incentives. See 486 F.3d at 498. But we have not

considered a situation like the present one, in which the

government itself invites judicial scrutiny of the underlying

6

Judge Tallman’s contrary reading of the I-213 addendum interpolates

words found nowhere in the actual language. Compare I-213 Form

addendum (Villa “served 156 days confinement in federal custody for

violation of 8 USC 1326(a)”), with Dissent at 26 n.4 (concluding that “the

officer noted Villa had been detained for 156 days awaiting trial on the

charge that he violated § 1326 . . . .” (emphases added)). Just as we

assume in other contexts that “a reasonably competent public official

should know the law,” Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982),

we also assume that immigration officials know the legal difference

between serving time for a particular violation and awaiting trial.
VILLA-ANGUIANO V. HOLDER 13

removal order by instigating a criminal prosecution under

§ 1326. We conclude that when, as a result of such scrutiny,

a district court finds constitutional infirmities in the prior

removal proceedings that invalidate the prior removal for

purposes of criminal prosecution, the agency cannot simply

rely on a pre-prosecution determination to reinstate the prior

removal order. Instead the agency must—as it may well

ordinarily do—(1) provide the alien with an opportunity after

the criminal prosecution is dismissed to make a written or

oral statement addressing the expedited reinstatement

determination in light of the facts found and the legal

conclusions reached in the course of the criminal case; and

(2) independently reassess whether to rely on the order issued

in the prior proceedings as the basis for deportation or instead

to instigate full removal proceedings.7

We so conclude for the following reasons: The regulation

implementing 8 U.S.C. § 1231(a)(5) requires the immigration

officer effecting reinstatement to “consider all relevant

evidence, including statements made by the alien and any

evidence in the alien’s possession.” 8 C.F.R. § 241.8(a)(3). 

The alien must be allowed 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 regulatory requirements respect an unlawfully

present alien’s right to be heard prior to removal, a right

which the Supreme Court has long recognized as grounded in

7 Once ICE complies with these constitutional requirements, it may

exercise its lawful discretion however it sees fit. In this sense, we agree

with our dissenting colleague that the agency need not “reach a different

result” on remand. Dissent at 28.
14 VILLA-ANGUIANO V. HOLDER

the Due Process Clause.8 Due process, in turn, entitles an

unlawfully present alien to consideration of issues relevant to

the exercise of an immigration officer’s discretion. LaritaMartinez v. INS, 220 F.3d 1092, 1095 (9th Cir. 2000), for

example, held that due process required the Board of

Immigration Appeals to consider “all relevant evidence

submitted on appeal” when reviewing the wholly

discretionary denial of an application for suspension of

deportation.9

 

8

See, e.g., Chew v. Colding, 344 U.S. 590, 597–98 (1953) (“Although

Congress may prescribe conditions for [an alien’s] expulsion and

deportation, not even Congress may expel himwithout allowing hima fair

opportunity to be heard.”); Yamataya v. Fisher, 189 U.S. 86, 101 (1903)

(“[I]t is not competent for . . . any executive officer . . . arbitrarily to cause

an alien who has entered the country, and has become subject in all

respects to its jurisdiction, and a part of its population, although alleged

to be illegally here, to be taken into custody and deported without giving

him all opportunity to be heard upon the questions involving his right to

be and remain in the United States.”); cf. Shaughnessy v. United States ex

rel. Mezei, 345 U.S. 206, 211 (1953) (“[A]liens who have once passed

through our gates, even illegally, may be expelled only after proceedings

conforming to traditional standards of fairness encompassed in due

process of law.”).

9 The dissent marshals Heckler v. Chaney, 470 U.S. 821, 831 (1985), to

dispute the existence of any cognizable liberty interest “in how an agency

exercises its purely discretionary decision on whether to prosecute.” 

Dissent at 23. Heckler, however, held only that an administrative

agency’s decision not to act was unreviewable under 5 U.S.C. § 701(a)(2),

explaining “when an agency refuses to act it generally does not exercise

its coercive power over an individual’s liberty or property,” and thus

leaves the courts with little to review. Heckler, 470 U.S. at 832, 837–38. 

In contrast, where, as here, an agency has taken or is proposing to take

action, “that action itself provides a focus for judicial review.” Id. at 832. 

Heckler thus does not relieve the courts of their duty to review the

constitutionality of agency action, whether discretionary or otherwise,

when called upon to do so.
VILLA-ANGUIANO V. HOLDER 15

For the requirements of § 241.8(a)(3), (b) to function as

the requisite “procedural safeguards” of the alien’s right to

due process in the context of streamlined proceedings, see

Morales-Izquierdo, 486 F.3d at 496, they must apply at the

relevant time. “The fundamental requirement of due process

is the opportunity to be heard at a meaningful time and in a

meaningful manner.” Mathews v. Eldridge, 424 U.S. 319,

333 (1976) (internal quotation marks omitted). For Villa to

have had a meaningful opportunity to address the proposed

reinstatement 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 pertinent information. As the

government indicated at oral argument, the district court’s

invalidation of Villa’s 1997 removal order as a basis for

§ 1326 prosecution, due to constitutional infirmities in the

original removal proceedings, is ordinarily pertinent to the

agency’s decision as to whether and how to proceed with his

removal.

Moreover, the agency must consider all favorable and

unfavorable factors relevant to the exercise 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 BIA

abuses its discretion when it fails to consider all relevant

factors bearing on the balance of equities or an application for

relief); Xiao Fei Zheng v. Holder, 644 F.3d 829, 833 (9th Cir.

2011) (same); cf. United States v. $11,500.00 in U.S.

Currency, 710 F.3d 1006, 1011 (9th Cir. 2013) (a district

court abuses its discretion if it fails to consider factors

relevant to the exercise of its discretion). If the procedures

used by ICE do not assure that the decision-makers obtain the

requisite information before the decision is made, then it is

unlikely that the decision made will be a proper one under the

abuse of discretion standard.
16 VILLA-ANGUIANO V. HOLDER

The Third Circuit has considered a somewhat analogous

circumstance, in which an alien contested reinstatement on

the asserted grounds that his prior removal order was

invalidated by a court and that he did not reenter the country

illegally. See Ponta-Garcia v. Att’y Gen. of the U.S.,

557 F.3d 158, 164 (3d Cir. 2009). Recognizing the

petitioner’s atypical circumstances, the Third Circuit

remanded the case to ICE for consideration of the alien’s

assertions. Id. at 165 (citing 8 C.F.R. § 241.8(a)(3)). The

court observed that although reinstatement pursuant to the

streamlined procedures adopted by Congress will be

uncontested in most cases, in the unusual instance in which

a petitioner raises issues that could affect whether ICE

pursues removal without a prior hearing, “more is required

[from the agency] than it appears was done here.” Id.

IV.

The government acknowledges that, had it known of the

district court’s findings, it quite possibly would have

exercised its discretion not to pursue reinstatement of Villa’s

1997 removal order. Consequently, Villa was prejudiced by

the ICE agents’ misinformation or lack of information

regarding his criminal prosecution, as well as by the absence

of an opportunity to contest the reinstatement determination

at a meaningful time—namely, before the reinstatement order

finally issued and was executed, and after new, relevant

circumstances had arisen. Accordingly, we remand to ICE to

provide that opportunity and to reconsider its reinstatement

determination in light of the district court’s findings

regarding Villa’s 1997 removal proceedings. We express no

view as to the outcome of that determination on remand.
VILLA-ANGUIANO V. HOLDER 17

The petition is GRANTED, the reinstatement order is

VACATED, and we REMAND to ICE for reconsideration

and further proceedings consistent with this disposition.

TALLMAN, Circuit Judge, dissenting:

The alien, a convicted killer who illegally re-entered the

United States after his prior deportation, has once again been

removed after the district court dismissed his 2008 criminal

re-entry charge because the 1997 removal order was

technically flawed. Congress has by statute strictly limited

what process is due to a petitioner who re-enters after a prior

deportation. Our court sitting en banc has carefully limited

the scope of our review of reinstated removal orders. See

generally Morales-Izquierdo v. Gonzales, 486 F.3d 484 (9th

Cir. 2007) (en banc). My colleagues in the majority

nonetheless create a new procedural rule by judicial

legislation, which the Supreme Court has held we may not do.

The majority holds that whenever the United States

chooses to criminally prosecute an alien who unlawfully

entered the country and fails in that prosecution, an

immigration officer—who has already complied with all of

the statutory and regulatory requirements for reinstatement of

a prior removal order—must give the alien a new opportunity

to implore the officer to decline reinstatement and instead

open new removal proceedings. It might be a perfectly

sensible rule if Congress or the agency prescribed it. But

neither Congress nor the agency has done so. Instead, the

majority’s new rule has only one source: the whole cloth

from which the majority has woven it.
18 VILLA-ANGUIANO V. HOLDER

The Supreme Court has told us it is “improper simply to

impose deportation procedures . . . because the reviewing

court may find them preferable.” Landon v. Plasencia,

459 U.S. 21, 35 (1982). In an effort to impose its preferred

procedures into ICE’s process for reinstatement of removal

orders, the majority has distorted constitutional due process

requirements and undercut controlling en banc precedent. I

respectfully dissent.

I

In 1997, the government removed Alejandro Israel VillaAnguiano (“Villa”) after he finished serving his sentence for

voluntary manslaughter. Villa does not dispute that he was

the alien subject to that removal order. Nor does he dispute

that in 2001, he knowingly re-entered the country without

permission and remained until he was apprehended on May

3, 2008. And he cannot dispute that the government provided

him with notice and an opportunity to be heard regarding the

reinstatement of his prior removal order—an opportunity he

waived on May 4, 2008, when he signed underneath a

checked box stating, “I do not wish to make a statement

contesting this determination.”

The majority concedes that as of that date, the

government needed no more to exercise its discretion to

reinstate his prior order of removal and summarily deport him

from the United States. However, the immigration officer

could not remove Villa immediately because the United

States opted to prosecute Villa for criminal re-entry under

8 U.S.C. § 1326. The majority now holds that when the

government chose to criminally prosecute Villa and the

district court later dismissed the charge after Villa brought a

collateral attack on the 1997 removal order, this created a
VILLA-ANGUIANO V. HOLDER 19

new requirement that the immigration officer give Villa yet

another opportunity to be heard. The officer must extend this

opportunity, says the majority, not so that Villa may contest

his eligibility for reinstatement, but rather so that he may

argue the agency should exercise its prosecutorial discretion

to instead open new removal proceedings. The majoritymust

concede this requirement has no basis in either statutory or

regulatory law. But it concludes ICE nonetheless abused its

discretion and remands so the agency must reconsider its

prosecutorial decision, even though Villa is long gone.

The reinstatement statute requires the Department of

Homeland Security to do nothing more to reinstate the

removal order that Villa knowingly flaunted. In 8 U.S.C.

§ 1231(a)(5), Congress “explicitly insulate[d] the removal

orders from review[] and generally foreclose[d] discretionary

relief from the terms of the reinstated order.” Fernandez

Vargas v. Gonzales, 548 U.S. 30, 35 (2006). The statute

provides in no uncertain terms:

If the Attorney General finds that an alien has

reentered the United States illegally after

having been removed or having departed

voluntarily, under an order of removal, the

prior order of removal is reinstated from its

original date and is not subject to being

reopened or reviewed, the alien is not eligible

and may not apply for any relief under this

chapter, and the alien shall be removed under

the prior order at any time after the reentry.

8 U.S.C. § 1231(a)(5).
20 VILLA-ANGUIANO V. HOLDER

The Department of Homeland Security has promulgated

8 C.F.R. § 241.8 to implement the reinstatement statute. 

Under the regulation, the immigration officer who issues the

reinstatement order must analyze three criteria.

First, the officer must confirm that the alien has been

subject to a prior order of removal. 8 C.F.R. § 241.8(a)(1). 

This requires the officer to obtain the prior order, which the

officer in this case did.

Second, the officer must confirm the identity of the

alien—that is, make sure that the person in question and the

alien who was previously removed are in fact one and the

same. Id. § 241.8(a)(2). Villa does not dispute that the

officer did this too.

Third, the officer must confirm that the alien “unlawfully

reentered the United States.” To do this, the officer must

“consider all relevant evidence” and attempt to verify any

claim that the alien “was lawfully admitted,” including a

check of any databases available to the officer. Id.

§ 241.8(a)(3). Villa, of course, made no such claim, and how

could he? Subject to a removal order that required him to

stay outside of the United States, Villa nonetheless

surreptitiously re-entered the country. He did so without the

permission of the United States government. He therefore reentered the country “unlawfully.”

The district court proceedings could not render Villa’s reentry “lawful.” The district court had jurisdiction only to

determine whether Villa’s re-entry was criminal, not whether

it was lawful. The district court’s conclusion that Villa did

not commit a new crime in no way alters the inquiry for the

immigration officer conducting a reinstatement, which is
VILLA-ANGUIANO V. HOLDER 21

simply: did this alien violate a removal order when he

entered the United States? The answer unquestionably is yes. 

Villa unlawfully re-entered the United States. If the agency

decides he must go, then he must go.

Therefore, both the laws enacted by Congress and the

Department of Homeland Security’s permissible construction

of those laws allowed the immigration officer to reinstate

Villa’s prior order of removal, regardless 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

reinstatement proceeding, this suffices to deny relief. 

Morales-Izquierdo, 486 F.3d at 491.

II

The majority implicitly agrees that under the law as it

currently stands, Villa is eligible for reinstatement. My

colleagues must acknowledge that although a district court

may determine that a removal order does not validly support

a criminal prosecution, that same court has no jurisdiction to

grant relief from an administrative order of removal. The

majority also knows that under our en banc decision in

Morales-Izquierdo v. Gonzales, we do not allow aliens who

have defied removal orders and re-entered the United States

to put themselves in a better position than aliens “who respect

our laws and wait patiently outside our borders seeking

lawful admission.” 486 F.3d at 498. So without any statutory

or regulatory foundation to grant relief, the majority falls

back on a dubious procedural due process analysis.

If I understand the majority argument, it proceeds in three

steps. First, the immigration officer has the discretion to

choose to initiate new removal proceedings instead of
22 VILLA-ANGUIANO V. HOLDER

reinstatement, even if the alien is, by statute, already

susceptible to immediate reinstatement. Second, if the

district court dismisses the criminal charge for illegal re-entry

because the alien demonstrated fundamentally unfair

infirmities in the original deportation order, the immigration

officer may be more likely to start new removal proceedings

instead of choosing reinstatement. Therefore, if the alien

succeeds in his defense to the criminal charge, the Due

Process Clause now requires the immigration officer to give

the defendant yet another opportunity to be heard—not to

argue that the alien is ineligible for reinstatement (because

8 U.S.C. § 1231(a)(5) and 8 C.F.R. § 241.8 both say Villa

clearly is eligible), but to instead argue that new removal

proceedings would be the more sensible exercise of the

agency’s prosecutorial discretion.1

One very important analytical step is missing: the

majority provides next to no analysis regarding why the Due

Process Clause compels such a result. Sure, the majority

affords us a cursory citation to Mathews v. Eldridge, 424 U.S.

319 (1976), a case governing the interest in Social Security

benefits, “a statutorily created ‘property’ interest.” Id. at 332. 

But it provides no case telling us why the Due Process Clause

requires that an agency must provide an alien the opportunity

1 The majority’s due process argument is a nice piece of advocacy—and

an argument I fail to find anywhere in Villa’s briefing. I thought the rule

was that petitioners for relief waive any arguments they fail to raise in

briefing, see Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079–80 (9th Cir.

2013) (“Lopez-Vasquez waived his challenge to the BIA’s denial of his

motion to reopen by failing to argue it in his brief.”), but the majority

believes a few scattered references to “due process” do all the necessary

work. The government, meanwhile, was not provided any meaningful

opportunity to respond to the substance of the due process argument the

majority has now conjured into an opinion.
VILLA-ANGUIANO V. HOLDER 23

to tell the agency how it should exercise its prosecutorial

discretion.

Although aliens are entitled to due process of law, they

“must in the first instance possess a liberty or property

interest.” Valencia-Alvarez v. Gonzales, 469 F.3d 1319, 1330

n.13 (9th Cir. 2006). Although we have considered aliens to

have such an interest when they are eligible for discretionary

relief from removal, we certainly have never held they have

any liberty or property interest in how an agency exercises its

purely discretionary decision on whether to prosecute. “[A]n

agency’s decision not to prosecute or enforce, whether

through civil or criminal process, is a decision generally

committed to an agency’s absolute discretion.” Heckler v.

Chaney, 470 U.S. 821, 831 (1985). This common-sense

conclusion derives from the steadfast principle that even

citizens are not “entitled to judicial oversight or review of the

decision to prosecute.” Albright v. Oliver, 510 U.S. 266, 274

(1994) (quoting Gerstein v. Pugh, 420 U.S. 103, 114 (1975)). 

Just as a criminal suspect has no procedural due process right

to a hearing before a prosecutor to argue for a more lenient

charge, Villa possesses no right to plead for any more than

the law provides. This is a fundamental separation of powers

issue, which the majority ignores when declaring remand is

nonetheless required because the agency somehow abused its

absolute discretion.

“While aliens have a right to fair procedures, they have no

constitutional right to force the government to re-adjudicate

a final removal order by unlawfully reentering the country.” 

Morales-Izquierdo, 486 F.3d at 498. In a reinstatement

proceeding, “an alien’s rights and remedies are severely

limited.” Id. at 497. Villa possesses no fewer rights today,

having had his removal order reinstated, than he did the day
24 VILLA-ANGUIANO V. HOLDER

he unlawfully re-entered the country because “[t]he

reinstatement order imposes no civil or criminal penalties,

creates no new obstacles to attacking the validity of the

removal order, and does not diminish petitioner’s access to

whatever path for lawful entry into the United States might

otherwise be available to him under the immigration laws.” 

Id. at 498 (citations omitted).

Those laws grant Villa no entitlement to new removal

proceedings. Perhaps Villa would possess a more concrete

interest if the agency’s regulations in any way spelled out this

discretion which the majority insists the agency regularly

practices.2 Yet the majority cites no statute or regulation that

delineates the criteria by which the agency must exercise its

prosecutorial discretion specifically in the context of

reinstatement—or that specifies how Villa’s successful

defense at his criminal trial should impact that discretionary

administrative decision whether to once again remove him. 

The majority instead misleadingly cites to the requirement in

8 C.F.R. § 241.8(a)(3) that the immigration officer “consider

all relevant evidence,” when it can easily ascertain that the

regulation only requires the officer to consider all evidence

relevant to determining whether the alien unlawfully reentered the country—which Villa unquestionably did. The

district court’s conclusion in sustaining his challenge to the

criminal indictment was irrelevant to that administrative

determination.

2 The absence of any statutory or regulatory standard whatsoever

establishing this discretion easily distinguishes this case from LaritaMartinez v. INS, 220 F.3d 1092 (9th Cir. 2000), where federal law clearly

established the petitioner’s right to seek suspension of deportation, even

if it was “wholly discretionary,” and the alleged violation occurred during

an appeal to the BIA, which was provided to the petitioner by law.
VILLA-ANGUIANO V. HOLDER 25

To the extent the majority relies on an internal ICE

memorandum—which does not specifically address

reinstatement—“[i]t is well settled that internal policy

manuals of federal agencies do not generally create due

process rights in others.” James v. U.S. Parole Comm’n,

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

explains that “there is no right to the favorable exercise of

discretion by the agency,” and therefore the memorandum

cautions that it “may not be relied upon to create any right or

benefit, substantive or procedural.” Memorandum from John

Morton, Director, ICE, on Exercising Prosecutorial

Discretion Consistent with the Civil Immigration

Enforcement Priorities of the Agency for the Apprehension,

Detention and Removal of Aliens, at 6 (June 17, 2011).3

The standards that are actually set out in regulatory and

statutory law establish that when ICE reinstates an alien’s

removal order, the alien only possesses an interest in how the

ICE officer resolves three questions: (1) whether the alien

was subject to a prior order of removal; (2) whether this alien

is the alien described in that order; and (3) whether the alien

illegally re-entered the country. On May 4, 2008, when he

waived his opportunity to be heard, Villa and the agency

possessed all of the information that would be relevant to

those three determinations. His opportunity to be heard, at

that time, could not have been more meaningful.

3 That memorandum also supports the immigration officer’s decision in

Villa’s case. The memorandumlists several “negative factors” that should

“prompt particular care and consideration” when ICE officers are

“exercising prosecutorial discretion.” They include “serious felons” and

aliens like Villa-Anguiano “with a record of illegal-re-entry.” Id. at 5. If

these are the factors that influence the exercise of discretion, how can my

colleagues say that discretion was abused here?
26 VILLA-ANGUIANO V. HOLDER

The majority agrees that Villa meets all of the

requirements for reinstatement of a removal order under

current statutory and regulatory law and that he waived his

opportunity to contest whether those requirements were met. 

So how could the agency have abused its discretion by

complying with federal law? Regardless of the answer, we

lack jurisdiction to review an abuse of discretion argument

that is merely recharacterized as a due process argument, 

Torres-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 interest in any

determination other than whether he unlawfullyre-entered the

United States in defiance of a removal order would “create a

new and wholly unwarranted incentive for aliens who have

previously been removed to reenter the country illegally in

order to take advantage of this self-help remedy.” MoralesIzquierdo, 486 F.3d at 498. Because there is no foundation in

our due process jurisprudence to hold that an alien possesses

4 There is no basis for the majority’s conclusion that the immigration

official proceeded on bad information regarding Villa’s criminal

prosecution. The addendum to the Record of Deportable/Inadmissible

Alien stated that Villa “served 156 days confinement in federal custody

for violation of 8 USC 1326(a) – Deported Alien Found in United States.” 

But the form also stated that “Subject’s case was dismissed for violation

of 8 USC 1326(a) – Deported Alien Found in the United States.”

(emphasis added). If the majority intends to take the first sentence at face

value, then it must believe as well that the “reasonably competent”

immigration officer somehow believed that Villa’s conviction was

dismissed because the court found Villa violated the statute. But that can’t

be right. It is more reasonable to read the two sentences in conjunction

and conclude that the officer noted Villa had been detained for 156 days

awaiting trial on the charge that he violated § 1326, and that five months

later the court dismissed the charge.
VILLA-ANGUIANO V. HOLDER 27

such a right, I cannot join a majority opinion that so casually

accords this newly minted right to Villa.

Even if such a liberty interest existed, an alien bears the

burden of proving the alleged violation prejudiced his or her

interest. Cano-Merida v. INS, 311 F.3d 960, 965 (9th Cir.

2002). Because Villa failed to make this due process

argument in his briefing—which the majority has chosen to

excuse and make for him—he made no showing of prejudice. 

But the majority argues that prejudice exists because the

agency “quite possibly would have exercised its discretion

not to pursue reinstatement of Villa’s 1997 removal order.” 

Majority Op. at 16.

This assertion opens Pandora’s box. Let us not forget that

as he stands today, Villa—who committed 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 illegally as he pleases, and under his current removal

order, the only thing the United States government can do is

reinstate that order of removal and deport him again. It is

highly unlikely that in any new removal proceedings, the

agency would grant discretionary relief to a convicted killer

who also ignores prior deportations by returning illegally. It

is far more likely that Villa would be removed once again, but

this time with a new removal order that would carry heavy

criminal consequences for his next re-entry. Although Villa

has no right to insist on such a proceeding, the majority has

overstated the damage, if any, that the reinstatement of

Villa’s removal order has caused to his interests.
28 VILLA-ANGUIANO V. HOLDER

III

The majority concedes a point that should be absolutely

clear: on remand, ICE has absolutely no obligation to reach

a different result. Although by now the government has

surely recognized it cannot punish Villa with anything more

than deportation, it may, under 8 U.S.C. § 1231(a)(5) and

8 C.F.R. § 241.8, reinstate his prior order of removal because

Villa meets each of the statutory and regulatory requirements

for reinstatement.

The majority opinion amounts to no more than a thinly

veiled suggestion, cloaked in the mantle of due process, that

ICE reconsider its decision to reinstate the prior removal

order and instead open new removal proceedings from which

years of litigation will ensue. Perhaps that would be the most

sensible course of action, so that next time Villa would have

no technical defense to a new felony conviction under § 1326. 

But that is a decision for the agency to make by balancing its

interest in the use of its limited resources with its interest in

securing a removal order that can better support future

criminal charges. Courts have no right to dictate that

executive decision or to establish new criteria the Executive

Branch must employ to make it.

The majority opinion unnecessarily intrudes on the

Executive Branch’s administration of immigration policy and

not only tells the Department of Homeland Security the

criteria it must consider in the exercise of its prosecutorial

discretion, but it also announces a novel holding that an alien

who unlawfully re-enters the country has a due process right

to influence the exercise of that prosecutorial discretion. Its

rule adds requirements that have no basis in law. The

Supreme Court has clearly told us not to do this. Landon,
VILLA-ANGUIANO V. HOLDER 29

459 U.S. at 35. Rather than remand on the basis of these

nonexistent requirements, I would deny relief and leave Villa

no worse off than where he stood before he willfully defied

his removal order and unlawfully re-entered the country. I

respectfully dissent.