Francilia Padilla v. John Ashcroft, Attorney General

334 F.3d 921 Francilia PADILLA, Petitioner, v. John ASHCROFT, Attorney General, Respondent. No. 02-70430. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 11, 2003. Filed July 1, 2003. James M. Byrne, San Francisco, CA, for the petitioner. Papu Sandhu, Senior Litigation Counsel, and Earle B. Wilson, Attorney, Office of Immigration Litigation, Civil Division, Department of Justice, Washington, DC, for the respondent. On Petition for Review of an Order of the Board of Immigration Appeals. INS No. Ajp-xye-mtv. Before KOZINSKI, GRABER, and BERZON, Circuit Judges. Opinion by Judge GRABER; Concurrence by Judge BERZON. GRABER, Circuit Judge: 1 Petitioner Francilia Padilla attempted to enter the United States using fraudulent documents and was removed pursuant to an expedited procedure that does not afford a hearing. She reentered illegally. After she applied for an adjustment of status, the Immigration and Naturalization Service ("INS") reinstated the prior removal order pursuant to another expedited procedure that does not afford a hearing. She sought review of the reinstatement, arguing that the prior order was reinstated in violation of her right to due…

Opinion by Judge GRABER; Concurrence by Judge BERZON.

Petitioner Francilia Padilla attempted to enter the United States using fraudulent documents and was removed pursuant to an expedited procedure that does not afford a hearing. She reentered illegally. After she applied for an adjustment of status, the Immigration and Naturalization Service (“INS”) reinstated the prior removal order pursuant to another expedited procedure that does not afford a hearing. She sought review of the reinstatement, arguing that the prior order was reinstated in violation of her right to due process. We deny the petition because Petitioner cannot demonstrate that the failure to afford a hearing prejudiced her.

FACTS AND PROCEDURAL HISTORY

Petitioner, a Guatemalan national, first sought entry into the United States via the Paseo del Norte Bridge in El Paso, Texas, in November 1997. Immigration officials suspected that her papers were forged and detained her for questioning. Petitioner admitted that the immigration forms were not hers and that she had substituted her photo for that of the rightful owner. INS officers ordered her removed pursuant to 8 U.S.C. § 1225 (b)(1)(A.)(i), which…

concurring:

I concur in the majority’s result. I agree that Padilla was inadmissible at the time her order of removal was reinstated. The denial of her application for adjustment of status correctly stated that Padilla was “inadmissible in that, following deportation, [she] re-entered the United States without the permission of the Attorney General.” 1 See 8 U.S.C. § 1182 (a)(9)(A)(ii) (“Any alien not described in clause (i) [‘Arriving aliens’] who ... has been ordered removed under section 240 or any other provision of law ... is inadmissible.”). A request for permission to reapply for entry, see 8 C.F.R. §§ 212.2 (a); 212.2(e), 2 might have cured Padilla’s inadmissibility premised on her illegal reentry, but no such request was ever filed with the district director. As a result, Padilla has not shown that she was prejudiced by the failure to afford her a hearing prior to the reinstatement, because she does not identify a plausible claim for opposing removal pursuant to reinstatement.

I disagree, however, with the majority’s (and the agency’s) reliance on the bar to

relief contained in 8 U.S.C. § 1231 (a)(5) as an alternative ground for denying the petition. That provision,…