Meng Li v. Robert C. Eddy, District Director, Ins

259 F.3d 1132, 2001 Cal. Daily Op. Serv. 6819, 2001 Daily Journal DAR 8367, 2001 U.S. App. LEXIS 17670, 2001 WL 883677
CourtCourt of Appeals for the Ninth Circuit
DecidedAugust 8, 2001
Docket97-35814
StatusPublished
Cited by26 cases

This text of 259 F.3d 1132 (Meng Li v. Robert C. Eddy, District Director, Ins) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Meng Li v. Robert C. Eddy, District Director, Ins, 259 F.3d 1132, 2001 Cal. Daily Op. Serv. 6819, 2001 Daily Journal DAR 8367, 2001 U.S. App. LEXIS 17670, 2001 WL 883677 (9th Cir. 2001).

Opinions

PER CURIAM Opinion; Dissent by Judge HAWKINS

PER CURIAM:

Appellant Meng Li is a native and citizen of China who seeks judicial review of the merits of the Immigration and Naturalization Service’s order of expedited removal under the provisions of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub.L. 104-208, 110 Stat. 3009, as amended by Act of Oct. 11, 1996, Pub.L. No. 104-302, 110 Stat. 3656. The district court dismissed Li’s petition for habeas corpus relief, holding that under the statute’s stringent limitations on judicial review of expedited removal orders, it lacked authority to review the merits of her claim. See 8 U.S.C. §§ 1252(e)(2); (e)(5). We affirm.

On June 6, 1997, Li was detained by the Immigration and Naturalization Service (INS) in Anchorage, an interim stop on her trip from China to New York. Although Li alleges that she presented a facially valid visa that she had used successfully on an earlier occasion, the INS determined Li was attempting to enter the country by engaging in fraud or misrepresentation, and used its expedited removal authority under 8 U.S.C. § 1225(B)(l)(A)(i) to exclude Li from the country.1 The order itself was issued on a form stating that the INS had determined the named alien to be excludable because of an attempt to enter the country through fraud or misrepresentation. The form included a space for a description of the nature of the fraud or misrepresentation, but the INS left that space blank in Li’s order.

Li filed this habeas corpus petition on June 12, 1997, contending her visa entitled her to entry into the United States and that her exclusion was therefore unlawful. She sought an order admitting her into this country and voiding the five-year bar to her reentry that was contained in the removal order.

Li’s removal occurred after the effective date of IIRIRA, a statute that empowers the INS to expedite the removal of certain aliens deemed inadmissible. 8 U.S.C. § 1225(b)(1)(A)®.

IIRIRA restricts judicial review of expedited removal orders. These restrictions are incorporated in 8 U.S.C. § 1252(e). Two are relevant to this case. The first, subsection (e)(2), sets general limits on [1134]*1134habeas proceedings involving aliens facing expedited removal from the United States, and the second, subsection (e)(5), precisely defines the scope of a court’s inquiry.

Under subsection (e)(2), a court hearing a habeas corpus petition is limited to determining whether the petitioner was an alien, whether the petitioner was removed under the appropriate section, and whether the petitioner can prove that the petitioner is a lawful resident or is requesting asylum as a refugee.2

Li does not contend that she is a lawful resident, a refugee or an asylum seeker. Nor does she dispute her alienage, or question the fact that the government invoked section 1225(b)(1) to order her removal. She questions only whether she committed any fraud that made the section applicable.

On its face, subsection (e)(2) does not appear to permit the court to inquire into whether section 1225(b)(1) was properly invoked, but only whether it was invoked at all. Were there any doubt of congressional intent, it is resolved by subsection (5), that expressly declares that judicial review does not extend to actual admissibility. It provides:

In determining whether an alien has been ordered removed under section 1225(b)(1) of this title, the court’s inquiry shall be limited to whether such an order in fact was issued and whether it relates to the petitioner. There shall be no review of whether the alien is aetually inadmissible or entitled to any relief from removal.

8 U.S.C. § 1252(e)(5).

Although we have not had occasion to review these particular provisions of this relatively recent statute, we have discussed the overall architecture of IIRIRA in the context of the transitional rules to be applied prior to the effective date of the statute. See Magana-Pizano v. INS, 200 F.3d 603 (9th Cir.1999). These rules are materially indistinguishable from the statute itself. See Flores-Miramontes v. INS, 212 F.3d 1133, 1136-37 (9th Cir.2000).

In Magana-Pizano we held that more general habeas review of INS decisions remains available under 28 U.S.C. § 2241 unless Congress has explicitly restricted such review. There we said:

IIRIRA § 242(g) limits judicial review, but does not refer to habeas jurisdiction under 28 U.S.C. § 2241. Presumably, the holding in Felker placed Congress on notice that it could repeal habeas jurisdiction under § 2241 only by express command, and not by implication.

Magana-Pizano, 200 F.3d at 609, citing Pak v. Reno, 196 F.3d 666, 673-74 (6th Cir.1999), citing Felker v. Turpin, 518 U.S. 651, 660, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996).

There is no specific limitation on the availability or scope of habeas corpus review of ordinary removal orders like the one in Magana-Pizano. With respect to review of expedited removal orders, how[1135]*1135ever, the statute could not be much clearer in its intent to restrict habeas review. See 8 U.S.C. § 1252(e)(2) (section entitled “Ha-beas corpus proceedings” provides “judicial review ... shall be limited-”). Accordingly, only two issues were properly before the district court: whether the order removing the petitioner was in fact issued, and whether the order named Li. Because these issues were not contested in the case, the district court properly dismissed the petition for failure to raise any issue within its jurisdiction to review.

Since it appears that the INS did not mistakenly identify petitioner, we do not reach the issue of whether the restrictions on review of habeas corpus contained in 8 U.S.C. § 1252(e) would prevent the court from considering a petition from someone allegedly targeted for expedited removal on the basis of mistaken identity. The government agrees there is no “in custody” requirement for the limited review provisions of section 1252(e). Nor do we need to decide whether Li satisfies the in custody requirement for habeas corpus relief under 8 U.S.C.

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259 F.3d 1132, 2001 Cal. Daily Op. Serv. 6819, 2001 Daily Journal DAR 8367, 2001 U.S. App. LEXIS 17670, 2001 WL 883677, Counsel Stack Legal Research, https://law.counselstack.com/opinion/meng-li-v-robert-c-eddy-district-director-ins-ca9-2001.