FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ISRAEL ALVARADO-HERRERA, No. 18-70191 Petitioner, Agency No. v. A206-023-796 MERRICK B. GARLAND, Attorney OPINION General, Respondent. On Petition for Review of an Order of an Immigration Judge Argued and Submitted September 16, 2020 San Francisco, California Filed April 13, 2021 Before: Paul J. Watford, Michelle T. Friedland, and Eric D. Miller, Circuit Judges. Opinion by Judge Watford 2 ALVARADO-HERRERA V. GARLAND SUMMARY * Immigration The panel granted in part, denied in part, and dismissed in part, Israel Alvarado-Herrera’s petition for review of an immigration judge’s decision affirming an asylum officer’s negative reasonable fear determination in reinstatement proceedings, and remanded with instructions. As an initial matter, the panel concluded that it lacked jurisdiction to consider Alvarado-Herrera’s contention that the Department of Homeland Security could not reinstate his 2013 expedited removal order because the order failed to comply with two regulatory provisions requiring certain signatures. The panel noted that the statute authorizing reinstatement of prior removal orders, 8 U.S.C. § 1231(a)(5), precludes most collateral attacks on the validity of the removal order being reinstated, unless the petitioner can show that a “gross miscarriage of justice” occurred during the earlier removal proceedings. The panel concluded that even that narrow sliver of jurisdiction is foreclosed when the underlying order was, as in this case, an expedited removal order. The panel explained the statute governing expedited removal orders, 8 U.S.C. § 1252(e), limits judicial review to three narrow issues, each of which must be raised in habeas corpus proceedings, concerning “whether the petitioner is an alien”; “whether the petitioner was ordered removed” under an expedited removal order; and whether the petitioner can prove that he or she has lawful status in the United States as an asylee, refugee, or permanent resident. Because * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. ALVARADO-HERRERA V. GARLAND 3 Alvarado-Herrera did not raise any such challenge, and this was not a habeas corpus proceeding, the panel dismissed this portion of the petition for lack of jurisdiction. The panel rejected Alvarado-Herrera’s contention that the agency lacked the statutory authority to create the reasonable fear screening process for withholding of removal and Convention Against Torture claims in reinstatement proceedings, and that Congress intended every non-citizen to receive a full due process hearing before an immigration judge. The panel concluded that the agency’s adoption of the reasonable fear screening process was based on a permissible reading of 8 U.S.C. § 1231(a)(5) and § 2242 of the Foreign Affairs Reform and Restructuring Act, as it represented a reasonable effort to reconcile the two statutes’ competing demands of allowing immigration officials to quickly identify and resolve frivolous claims to protection, thereby recognizing Congress’s desire to ensure the swift removal of non-citizens subject to reinstatement, while at the same time, addressing the United States’ treaty obligations by making it possible for those who do have a reasonable fear …
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