FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT HEVER ALBERTO MENDOZA No. 20-71582 LINARES, Agency No. Petitioner, A213-209-821 v. ORDER MERRICK B. GARLAND, Attorney General, Respondent. Filed July 5, 2023 Before: Susan P. Graber and Daniel P. Collins, Circuit Judges, and Jennifer Choe-Groves, * Judge. Order; Concurrence by Judge Collins; Statement by Judge Berzon * The Honorable Jennifer Choe-Groves, Judge for the United States Court of International Trade, sitting by designation. 2 MENDOZA-LINARES V. GARLAND SUMMARY ** Immigration The panel denied a petition for rehearing en banc after a request for a vote on whether to rehear the matter en banc, and the matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration, in a case in which the panel held that: (1) subject only to a very limited form of habeas corpus review that is inapplicable in this case, § 242 of the Immigration and Nationality Act (“INA”), see 8 U.S.C. § 1252, “clearly and unambiguously” precludes judicial review of expedited removal orders, even with regard to constitutional challenges to such orders; and (2) as applied in this case—which involved an arriving alien with no previous ties to the United States—that denial of all judicial review was constitutional. Concurring in the denial of rehearing en banc, Judge Collins wrote briefly only to respond to certain points made in the Statement disagreeing with the court’s decision not to rehear this case en banc. Judge Collins explained that in examining the structure of the expedited removal system, the panel majority properly focused on the only class of aliens whom Congress itself automatically subjected to that system, namely, aliens “arriving in the United States.” Judge Collins wrote that the Attorney General’s decision, under INA § 235(b)(1)(A)(iii)(I), to extend the expedited removal ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. MENDOZA-LINARES V. GARLAND 3 system—with its lack of judicial review—to additional aliens (i.e., beyond arriving aliens) may raise different constitutional questions. But the fact that such extensions are authorized (within limits) under the statute and may raise distinct constitutional issues provides no basis for failing to acknowledge the statute’s unambiguous denial of judicial review of expedited removal orders. As the Supreme Court has stated, and the panel majority noted, courts cannot press statutory construction to the point of disingenuous evasion even to avoid a constitutional question. Where, as here, Congress has clearly and comprehensively sought to bar judicial review, its intent must be respected even if a difficult constitutional question is presented. Judge Collins noted that the Statement argues that if and when the court is presented with a purported petition for review of an expedited removal order involving a non- arriving alien, it will be constrained to find the statute unconstitutional as applied in such cases. Judge Collins wrote that because that issue was not before the panel and was not decided …
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