FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MANJINDER SINGH,

Petitioner,

v.

WILLIAM P. BARR, Attorney

General,

Respondent.

No. 19-70932

Agency No.

A215-827-867

KULWANT SINGH,

Petitioner,

v.

WILLIAM P. BARR, Attorney

General,

Respondent.

No. 19-71025

Agency No.

A201-431-264

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted September 2, 2020

Seattle, Washington

Filed December 9, 2020
2 SINGH V. BARR

Before: Jay S. Bybee and Daniel P. Collins, Circuit

Judges, and Richard G. Stearns,* District Judge.

Opinion by Judge Bybee

SUMMARY**

Immigration

The panel dismissed for lack of jurisdiction, under

8 U.S.C. § 1252, Manjinder Singh and Kulwant Singh’s

petitions for review of separate immigration judge decisions

concluding that they lacked jurisdiction to reopen credible

fear proceedings under 8 C.F.R. § 1208.30(g)(2)(iv)(A).

The panel observed that judicial review of an expedited

removal order, including the merits of a credible fear

determination, is expressly prohibited by § 1252(a)(2)(A)(iii). 

Petitioners stressed that they were not asking this court to

review the merits of the IJs’ credible fear determinations, but

instead were asking the court to exercise jurisdiction to

review the IJs’ denials of motions to reopen on the grounds

that the IJs misconstrued their authority to do so under

8 C.F.R. § 1208.30(g)(2)(iv)(A). The panel concluded that it

could not do so, explaining that where Congress explicitly

withdraws jurisdiction to review a final order of deportation,

* The Honorable Richard G. Stearns, United States District Judge for

the District of Massachusetts, sitting by designation.

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

been prepared by court staff for the convenience of the reader.
SINGH V. BARR 3

authority to review motions to reconsider or to reopen

deportation proceedings is thereby likewise withdrawn. 

While recognizing that § 1252(e) authorizes some judicial

review of expedited removal orders and policies and

procedures, the panel concluded that it did not provide

jurisdiction over petitioners’ specific challenges.

The panel noted that in Ayala v. Sessions, 855 F.3d 1012

(9th Cir. 2017), and Bartolome v. Sessions, 904 F.3d 803 (9th

Cir. 2018), this court determined that it had jurisdiction to

consider an IJ’s denial of motions to reopen or reconsider, but

the panel concluded that those cases were distinguishable,

because they involved review of reasonable fear

determinations in the context of a reinstatement of a prior

removal order under 8 U.S.C. § 1231(a)(5), rather than a

credible fear determination under § 1225(b)(1). 

The panel also concluded that 8 U.S.C. § 1252(a)(2)(D),

which re-vests the court with jurisdiction to hear certain

constitutional claims or questions of law, did not apply,

because that provision provides jurisdiction to review claims

otherwise barred under § 1252(a)(2) Subparagraphs (B) or

(C), or those barred by provisions other than § 1252, but by

its own terms does not cover claims barred by

Subparagraph (A), which was the provision that applied in

this case. The panel explained that even a decision that might

appear to fall within Subparagraphs (B) or (C) is not

reviewable under § 1252(a)(2)(D) if it is subject to a separate

prohibition of Subparagraph (A).

The panel noted that petitioners’ Suspension Clause

challenge was foreclosed by Department of Homeland

Security v. Thuraissigiam, 140 S. Ct. 1959 (2020).
4 SINGH V. BARR

COUNSEL

Matthew Borowski (argued), Borowski Witmer Immigration

Lawyers, Buffalo, New York for Petitioners.

Tracie N. Jones (argued), Trial Attorney; Andrew N.

O’Malley and Timothy G. Hayes, Senior Litigation Counsel;

Cindy S. Ferrier, Assistant Director; Ethan P. Davis, Acting

Assistant AttorneyGeneral; Office ofImmigration Litigation,

Civil Division, United States Department of Justice,

Washington, D.C.; for Respondent.

OPINION

BYBEE, Circuit Judge:

Petitioners Manjinder Singh and Kulwant Singh are Sikhs

from Punjab, India who entered the United States in late

2018.1 The United States Customs and Border Patrol (CBP)

determined that Petitioners were inadmissable as aliens not in

possession of valid entry documents, and processed them for

expedited removal. Manjinder and Kulwant each expressed

a fear of returning to India, and credible fear interviews were

conducted by United States Citizenship and Immigration

Services (USCIS) asylumofficers. The asylumofficers made

negative credible fear determinations in both cases. After

review, immigration judges (IJs) concurred in the negative

1 Manjinder and Kulwant’s petitions were brought separately, and the

record does not suggest any relationship between the two. However,

because the petitions raise identical legal issues and have extensive factual

similarities, we address the petitions together. We will refer to them either

as “Petitioners” or by their first names to avoid confusion.
SINGH V. BARR 5

credible fear determinations. Petitioners moved for the IJs to

exercise sua sponte authority to reopen their credible fear

determinations. Both IJs denied the motions on the basis that

IJs lack jurisdiction to reopen credible fear proceedings under

8 C.F.R. § 1208.30(g)(2)(iv)(A). Petitioners seek review of

the denials of the motions to reopen.

Because we lack jurisdiction under 8 U.S.C. § 1252 to

review Manjinder’s and Kulwant’s petitions, we dismiss.

I. FACTUAL AND PROCEDURAL HISTORY

A. Manjinder Singh

Manjinder Singh is a native and citizen of India. In

October 2018, Manjinder encountered border patrol agents

outside of a U.S. port of entry. CBP determined Manjinder

was inadmissible as an alien not in possession of entry

documents, processed Manjinder for expedited removal

pursuant to 8 U.S.C. § 1225(b)(1),2conducted an initial

2 The INA sets out streamlined procedures for the execution of

expedited removal orders, permitting removal of certain aliens “without

further hearing or review unless the alien indicates either an intention to

apply for asylum . . . or a fear of persecution.” 8 U.S.C.

§ 1225(b)(1)(A)(i). If the alien expresses either, the alien must be referred

to an asylum officer for a credible fear interview. Id. § 1225(b)(1)(A)(ii). 

If the asylum officer determines the alien does have a credible fear of

persecution, the alien must be detained for consideration of an asylum

application. Id. § 1225(b)(1)(B)(ii).

If the asylumofficer determines that the alien does not have a credible

fear, the alien will be ordered removed without further review unless the

alien requests review by an IJ. Id. §§ 1225(b)(1)(B)(iii)(I), (III). The IJ’s

decision is final and may not be appealed. 8 C.F.R.

§ 1208.30(g)(2)(iv)(A). Even if the IJ affirms the asylum officer’s
6 SINGH V. BARR

interview, and completed a record of his sworn statement. 

Because Manjinder expressed a fear of returning to India,

CBP referred him to USCIS for a credible fear interview. In

the interview, Manjinder told the officer that he was a Sikh

from Punjab, India; in February 2018, he was working for the

Mann Party; in May and July 2018, he was harmed by

members of the Congress Party; and he feared future harm

from the Congress Party and the Bhartiya Janta Party (BJP)

if he returned to India. The asylum officer found that

Manjinder was not credible and therefore lacked a credible

fear of harm upon return to India.

In November 2018, CBP presented Manjinder with an

expedited removal order. At this time, Manjinder requested

review of the credible fear determination by an IJ. The matter

was referred to Judge Santos-Garcia who held a hearing and

affirmed the asylum officer’s negative credible fear

determination.

Almost four months later, in March 2019, Manjinder filed

a motion to reopen the credible fear proceedings. His motion

asserted that the asylum officer and Judge Santos-Garcia

erred in determining that he was not credible and that he

received ineffective assistance of counsel because his counsel

did not attend the hearing. Judge Santos-Garcia denied the

motion to reopen for a lack of jurisdiction under 8 C.F.R.

§ 1208.30(g)(2)(iv)(A). Judge Santos-Garcia also found, in

the alternative, that the motion to reopen was untimely and

Manjinder had been given the opportunity to explain his

statements at the November hearing. Manjinder now

petitions for review of Judge Santos-Garcia’s denial of his

determination the USCIS may reconsider a negative credible fear finding

after providing notice to the immigration judge. Id.
SINGH V. BARR 7

motion to reopen the credible fear determination. Manjinder

does not request that we review the merits of the credible fear

determination.

B. Kulwant Singh

Kulwant Singh is a thirty-four-year-old male, a native and

citizen of India. Kulwant encountered border patrol agents at

a port of entry in December 2018. CBP determined that

Kulwant was inadmissable as an alien not in possession of

valid entry documents and processed him for expedited

removal pursuant to 8 U.S.C. § 1225(b)(1). During his

interview with CBP, Kulwant expressed a fear of returning to

India because he was in danger from the BJP. CBP referred

Kulwant for a credible fear interview with a USCIS asylum

officer.

Kulwant’s credible fear interview took place in January

2019. At his credible fear interview, Kulwant stated that he

was a Sikh from Punjab, India; he had been a member of the

Mann Party since 2013; in November 2017 and July 2018, he

was attacked by the BJP with baseball bats and wooden

sticks; and he feared future harm from the BJP if he returned

to India. The asylum officer determined that Kulwant was

not credible, and therefore lacked a credible fear of returning

to India. In February 2019, CBP presented Kulwant with an

expedited removal order on the basis of the negative credible

fear determination. Kulwant requested reviewof the negative

credible fear determination by an IJ.

Judge Attia held a credible fear hearing and concurred in

the asylum officer’s negative credible fear determination and

remanded the case to USCIS for removal. In April 2019,

Kulwant filed a motion to reopen in which he asserted that he
8 SINGH V. BARR

received ineffective assistance of counsel and the asylum

officer erred by mischaracterizing the record. Judge Attia

denied the motion to reopen for a lack of jurisdiction, citing

8 C.F.R. § 1208.30(g)(2)(iv)(A). Kulwant now petitions for

review of Judge Attia’s denial of his motion to reopen. 

Kulwant does not request review of the merits of the negative

credible fear determination.

II. JURISDICTION AND STANDARD OF REVIEW

The parties agree that our jurisdiction to review

administrative immigration proceedings is governed by § 242

of the Immigration and Nationality Act (INA), 8 U.S.C.

§ 1252, as revised by § 306 of the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L.

No. 104-208, Div. C, § 306, 110 Stat. 3009-607 (1996). The

parties dispute whether 8 U.S.C. § 1252 grants us jurisdiction

over petitioners’ appeals.

We have jurisdiction to consider our own jurisdiction. 

See Daas v. Holder, 620 F.3d 1050, 1053 (9th Cir. 2010).

III. ANALYSIS

The parties agree that 8 U.S.C. § 1252 governs our

jurisdiction over the petitions for review. The Government

contends, however, that § 1252(a)(2)(A) deprives us of

jurisdiction to review Manjinder’s and Kulwant’s petitions. 

We agree.

We begin with two observations. First, we start from a

“presumption favoring judicial review of administrative

action.” Kucana v. Holder, 558 U.S. 233, 251 (2010). 

“When a statute is ‘reasonably susceptible to divergent
SINGH V. BARR 9

interpretation, we adopt the reading that accords with

traditional understandings and basic principles: that executive

determinations generally are subject to judicial review.’” Id.

(quoting Gutierrez de Martinez v. Lamagno, 515 U.S. 417,

434 (1995)). It takes “clear and convincing evidence” to

dislodge this “well-settled” presumption. Kucana, 558 U.S.

at 251–52. Second, we recognize that we have routinely

exercised jurisdiction under § 1252 to review IJ denials of

motions to reopen certain removal proceedings. See, e.g.,

Mata v. Lynch, 576 U.S. 143, 147 (2015) (“[C]ircuit courts

have jurisdiction when an alien appeals from the [Board of

Immigration Appeals’s (BIA’s)] denial of a motion to reopen

a removal proceeding.”); Kucana, 558 U.S. at 249 (holding

that § 1252(a)(2)(B)(ii), which governs judicial review of

discretionary decisions made by the Attorney General or the

Secretary of Homeland Security, “does not proscribe judicial

review of denials of motions to reopen”); Bonilla v. Lynch,

840 F.3d 575, 581 (9th Cir. 2016) (reviewing denial of a

motion to reopen proceedings for adjustment of status);

Hernandez v. Holder, 738 F.3d 1099, 1100–01 (9th Cir.

2013) (reviewing Board’s dismissal for lack of jurisdiction of

a motion to reopen application for cancellation of removal).

Although we have determined that we have jurisdiction to

review an IJ’s denial of motions to reopen or reconsider in

other contexts, see Bartolome v. Sessions, 904 F.3d 803, 815

(9th Cir. 2018); Ayala v. Sessions, 855 F.3d 1012 1017–18

(9th Cir. 2017), we have not yet determined the precise

question at issue here: whether § 1252 prohibits our review

of an IJ’s denial of a motion to reopen a credible fear

determination. See Kucana, 558 U.S. at 250 n.17 (“We do

not reach the question whether review of a reopening denial

would be precluded if the court would lack jurisdiction over

the alien’s underlying claim for relief.”); cf. Cervantes v.
10 SINGH V. BARR

Barr, 769 F. App’x 456, 456 (9th Cir. 2019) (holding that

petitioners failed “to provide us with a sufficient basis for

statutory jurisdiction to review BIA’s dismissal for lack of

jurisdiction of an appeal of a motion to reopen” expedited

removal proceedings). We now answer that question, and we

conclude that the language of § 1252 clearly and

convincingly demonstrates that Congress intended to

circumscribe judicial review of motions to reopen credible

fear determinations.

Section 1252(a)(2)(A) governs the availability of judicial

review over expedited orders of removal and specified related

determinations. That section provides:

Notwithstanding any other provision of law

(statutory or nonstatutory) . . . no court shall

have jurisdiction to review—

(i) except as provided in subsection (e),

any individual determination or to entertain

any other cause or claim arising from or

relating to the implementation or operation of

an order of removal pursuant to [8 U.S.C.

§ 1225(b)(1)],

(ii) except as provided in subsection (e), a

decision by the Attorney General to invoke

the provisions of [§ 1225(b)(1)],

(iii) the application of [§ 1225(b)(1)] to

individual aliens, including the [credible fear]

determination made under section

1225(b)(1)(B) . . . , or
SINGH V. BARR 11

(iv) except as provided in subsection (e),

procedures and policies adopted by the

Attorney General to implement the provisions

of section 1225(b)(1) . . . .

8 U.S.C. § 1252(a)(2)(A)(i)–(iv). Judicial review of an

expedited removal order, including the merits of a credible

fear determination, is thus expressly prohibited by

§ 1252(a)(2)(A)(iii). See Pena, 815 F.3d at 455 (court of

appeals lacked jurisdiction to review procedural challenge to

expedited removal proceedings); Garcia de Rincon v. Dep’t

of Homeland Sec., 539 F.3d 1133, 1139 (9th Cir. 2008) (court

of appeals lacked jurisdiction to hear collateral attack on

underlying expedited removal order in reinstatement

proceedings); see also Castro v. U.S. Dep’t of Homeland Sec.,

835 F.3d 422, 431–32 (3d Cir. 2016) (collecting cases).

Petitioners do not disagree with our reading of

§ 1252(a)(2)(A)(iii). Petitioners repeatedly stress that they

are not asking us to review the merits of the IJs’ credible fear

determinations. Instead, Petitioners ask us to exercise

jurisdiction to review the IJs’ denials of motions to reopen on

the grounds that the IJs misconstrued their authority to do so

under 8 C.F.R. § 1208.30(g)(2)(iv)(A).3 This we cannot do. 

3

 That regulation provides:

If the immigration judge concurs with the determination

of the asylum officer that the alien does not have a

credible fear of persecution or torture, the case shall be

returned to the [USCIS] for removal of the alien. The

immigration judge’s decision is final and may not be

appealed. The [USCIS], however, may reconsider a

negative credible fear finding that has been concurred

upon by an immigration judge after providing notice of
12 SINGH V. BARR

We have held that “where Congress explicitly withdraws our

jurisdiction to review a final order of deportation, our

authority to review motions to reconsider or to reopen

deportation proceedings is thereby likewise withdrawn.” 

Sarmadi v. INS, 121 F.3d 1319, 1322 (9th Cir. 1997); see also

Alcala v. Holder, 563 F.3d 1009, 1014 (9th Cir. 2009) (“[O]ur

jurisdiction over a motion to reopen is derivative of our

jurisdiction over the underlying order of removal.”).

We can characterize Petitioners’ request as one either

“arising from or relating to the implementation or operation

of” an expedited removal order, 8 U.S.C. § 1252(a)(2)(A)(i),

or seeking review of “procedures and policies adopted by the

Attorney General,” id. § 1252(a)(2)(A)(iv). Either way, the

review Petitioners seek is still outside of our jurisdiction

“except as provided in [§ 1252(e)].” See Thuraissigiam v.

U.S. Dep’t of Homeland Sec., 917 F.3d 1097, 1119 (9th Cir.

2019) (“Section 1252(a)(2)(A)(i) . . . clearly bars claims

relating to procedural error.”), rev’d on other grounds, 140 S.

Ct. 1959 (2020). Section 1252(e) does not permit us to

review the Petitioners’ requests on a petition for review from

an IJ’s denial. Though § 1252(e) authorizes some judicial

review of expedited removal orders and policies and

procedures, it limits review to specific challenges and venues. 

Section 1252(e)(2) permits habeas corpus proceedings limited

to inquiring “whether the petitioner is an alien,” “whether

petitioner was ordered removed under” § 1252(b)(1), and

whether petitioner “can prove by a preponderance of the

evidence that the petitioner is an alien lawfully admitted for

permanent residence, has been admitted as a refugee . . . , or

its reconsideration to the immigration judge.

8 C.F.R. § 1208.30(g)(2)(iv)(A).
SINGH V. BARR 13

has been granted asylum . . . .” See 8 U.S.C. § 1252(e)(2);

Thuraissigiam, 917 F.3d at 1103–04. Petitioners do not bring

challenges on any of these bases.

Alternatively, a challenge to the validity of the regulations

implementing § 1225(b)(1) may be reviewed for

constitutionality, consistency with § 1225, or other violations

of federal law. See 8 U.S.C. § 1252(e)(3). However, such

actions seeking review of regulations must be filed no later

than sixty days after the challenged regulation is “first

implemented” and must be filed in the United States District

Court for the District of Columbia. See id. §§ 1252(e)(3)(A),

(B). Section 1252(e) does not grant us either jurisdiction or

venue to review such petitions. See Garcia de Rincon,

539 F.3d at 1139 (“[De Rincon’s challenge] does not contest

her expedited removal order on any of the enumerated

permissible grounds in § 1252(e)—this court therefore has no

jurisdiction to hear it.”).

Petitioners point us to Ayala v. Sessions, 855 F.3d 1012

(9th Cir. 2017), and Bartolome v. Sessions, 904 F.3d 803 (9th

Cir. 2018), but those decisions are not to the contrary. Both

of these cases involved review of a reasonable fear

determination in the context of a reinstatement of a prior

removal order under 8 U.S.C. § 1231(a)(5), rather than a

credible fear determination under § 1225(b)(1). In Ayala we

concluded that “we have jurisdiction over petitions for review

of reasonable fear determinations made in connection with

the reinstatement of expedited removal orders.” 855 F.3d at

1018. We acknowledged our prior decision in Garcia de

Rincon, in which we held that we lack jurisdiction to review

a collateral attack on the underlying expedited removal order

during reinstatement proceedings, Garcia de Rincon,

539 F.3d at 1138, but we distinguished a reasonable fear
14 SINGH V. BARR

determination arising from a reinstatement proceeding from

an attack on an “original underlying expedited removal

proceeding[].” Ayala, 855 F.3d at 1018. We concluded that

“Garcia de Rincon [was] inapplicable.” Id. Because we

found that “[n]othing in 8 U.S.C. § 1252 prevents us from

exercising jurisdiction to review the accuracy of the . . .

reasonable fear determination” in connection with the

reinstatement order under § 1231(a)(5), see id., we were free

to reach the question whether “[t]he IJ abused his discretion

in denying Ayala’s motion to reopen and reconsider,” id. at

1020. See also Bartolome, 904 F.3d at 815; Alcala, 563 F.3d

at 1014; Medina-Morales v. Ashcroft, 371 F.3d 520, 528 (9th

Cir. 2004).

Petitioners, at oral argument, also pointed us to 8 U.S.C.

§ 1252(a)(2)(D) as authority permitting the review of legal

and constitutional questions. See also Ayala, 855 F.3d

at 1017–18. That subparagraph provides:

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

other provision of this chapter (other than this

section) which limits or eliminates judicial

review, shall be construed as precluding

review of constitutional claims or questions of

law raised upon a petition for review filed

with an appropriate court of appeals in

accordance with this section.

8 U.S.C. § 1252(a)(2)(D). We have read Subparagraph (D)

to “re-vest[] the circuit courts with jurisdiction to hear

‘constitutional claims or questions of law’ that might

otherwise be barred . . . .” Garcia de Rincon, 539 F.3d at

1137. The re-vestment clause does not apply to Petitioners’

claims, however. By its own terms, Subparagraph (D) does
SINGH V. BARR 15

not re-vest jurisdiction in our court over legal questions

whose review is prohibited by Subparagraph (A). 8 U.S.C.

§ 1252(a)(2)(D). Subparagraphs (A), (B), and (C) each

establish separate and alternative prohibitions on review of

certain matters. Subparagraph (D) then provides that the

prohibitions “in subparagraph (B) or (C), or in any other

provision of [the INA] (other than this section)” shall not

preclude review of legal or constitutional questions on a

petition for review. Subparagraph (D), therefore, only

overrides prohibitions contained in (1) a provision of the INA

other than § 1252, or (2) either § 1252(a)(2)(B) or (C). It

plainly does not override the prohibition in Subparagraph (A)

because it is not in a “provision of [the INA] (other than this

section),” and it is not “subparagraph (B) or (C).” Thus, even

a decision that might appear to fall within Subparagraphs (B)

or (C) is not reviewable under § 1252(a)(2)(D) if it is subject

to a separate prohibition of Subparagraph (A). To say

otherwise, would not be a credible reading of the statute. See

Kucana, 558 U.S. at 252 (“‘[M]any provisions of IIRIRA

[we]re aimed at protecting [from court review exercises of]

the Executive’s discretion.’”) (alterations in original) (quoting

Reno v. American Arab Anti-DiscriminationComm., 525 U.S.

471, 486 (1999)). The re-vesting provision of Subparagraph

(D) does not refer to the non-reviewability provisions of

Subparagraph (A), and it is that provision that deprives us of

jurisdiction to review the IJs’ refusals to consider Petitioners’

motions to reopen.4

4 Petitioners briefly raised a Suspension Clause challenge at oral

argument. But the Supreme Court foreclosed this argument in Department

of Homeland Security v. Thuraissigiam, 140 S. Ct. 1959 (2020). See id.

at 1969 (The writ of habeas corpus “simply provided a means of

contesting the lawfulness of restraint and securing release.”). The Court

rejected the contention that the writ required the ability “to obtain

administrative or judicial review leading to” “authorization for an alien
16 SINGH V. BARR

IV. CONCLUSION

Read together, §§ 1252(a)(2)(A), (D) and 1252(e) provide

clear and convincing evidence that Congress intended to

deprive circuit courts of appeals of jurisdiction to review

expedited removal orders and related matters affecting those

orders, including underlying negative credible fear

determinations and rulings on the regulations implementing

the expedited removal statute. We are without jurisdiction to

review the petitions for review of the denials of Petitioners’

motions to reopen and therefore dismiss.

DISMISSED.

[stopped at the border] to remain in a country other than his own.” Id.

at 1971–81.