Raul Morales-Izquierdo v. Alberto R. Gonzales, Attorney General

Opinion by Judge KOZINSKI; Dissent by Judge THOMAS.

ORDER AND AMENDED OPINION

ORDER

The petition for panel rehearing is denied. See Fed. R. App. P. 40. Judges Pregerson, Reinhardt, Thomas and W. Fletcher would grant the petition. The opinion filed on February 6, 2007, slip op. at 1389 [ 477 F.3d 691 ], is amended as follows:

OPINION

When an alien subject to removal leaves the country, the removal order is deemed to be executed. If the alien reenters the country illegally, the order may not be executed against him again unless it has been “reinstated” by an authorized official. 1 Until 1997, removal orders could *488 only be reinstated by immigration judges. That year, the Attorney General changed the applicable regulation to delegate this authority, in most cases, to immigration officers. We consider whether this change in regulation is valid.

I

Morales-Izquierdo, a native and citizen of Mexico, was arrested in 1994 for entering the United States without inspection. He was released and served with a mail-out order to show cause. 2 Eventually, a removal hearing was scheduled, and Morales was notified via certified mail of the time and place of the hearing. When Morales…

dissenting:

On January 15, 2003, Raul Morales-Izquierdo and his United States citizen wife, Patricia Morales, attended a meeting at the INS’s Tacoma, Washington office. The Moraleses expected to discuss the I-130 alien relative petition that Patricia had filed on March 1, 2001, to adjust her husband’s status to that of a legal permanent resident. Instead, the INS served on the couple both a denial of the petition for adjustment of status and a notice of intent to reinstate a 1994 deportation order against Raul Morales under INA § 241(a)(5).

Morales has consistently and emphatically maintained that the 1994 deportation order is invalid because he was never given notice of the 1994 hearing at which he was ordered deported in absentia. In a sworn statement, Morales claimed never to have received the notice that was sent to his ex-girlfriend’s house, explaining that someone else had signed to indicate receipt of the notice. He has never been granted a hearing at which he could present his case; the majority opinion assures that he never will be.

This result would have been impossible under the regulations that governed reinstatement proceedings for nearly forty-five years. Under…

486 F.3d 484 Raul MORALES-IZQUIERDO, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent. No. 03-70674. United States Court of Appeals, Ninth Circuit. Argued and Submitted December 13, 2005. Proceedings Stayed January 5, 2006. Resubmitted June 22, 2006. Filed February 6, 2007. Amended May 8, 2007. Robert Pauw, Gibbs Houston Pauw, Seattle, WA, for the petitioner. Peter D. Keisler, Assistant Attorney General, Civil Division; Jonathan F. Cohn, Deputy Assistant Attorney General; Donald E. Keener, Deputy Director, Office of Immigration Litigation; John Andre, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, Washington, DC, for the respondent. Trina A. Realmuto and Nadine K. Wettstein, American Immigration Law Foundation, Washington, DC, as amici curiae in support of the petitioner. On Petition for Review of an Order of the Board of Immigration Appeals. Ins No. Afh-sse-yhw. Before MARY M. SCHROEDER, Chief Judge, HARRY PREGERSON, STEPHEN REINHARDT, ALEX KOZINSKI, PAMELA ANN RYMER, MICHAEL DALY HAWKINS, SIDNEY R. THOMAS, SUSAN P. GRABER, WILLIAM A. FLETCHER, RONALD M. GOULD and JAY S. BYBEE, Circuit Judges. Opinion by Judge KOZINSKI; Dissent by…