Rene Severiano-Badillo v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 17, 2021
• Docket: 19-73115
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION AUG 17 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RENE SEVERIANO-BADILLO, No. 19-73115

Petitioner, Agency No. A094-951-130

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted August 12, 2021** Seattle, Washington

Before: BEA, BRESS, and VANDYKE, Circuit Judges.

Rene Severiano-Badillo, a native and citizen of Mexico, illegally entered the

United States and was ordered removed in 2011. He reentered illegally and was

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). apprehended and ordered removed again by reinstatement of his 2011 removal

order. He now appeals the constitutionality of the Department of Homeland

Security’s (“DHS”) removal process.

We review constitutional questions de novo. See Garcia de Rincon v.

DHS, 539 F.3d 1133, 1137–38 (9th Cir. 2008). We deny his petition for review

and his accompanying motion to stay removal.

Severiano-Badillo contends that the Fifth and Eighth Amendments require

DHS to consider whether reinstatement is proportionate to his crime of illegally

entering the United States. “Deportation is strictly a Congressional policy question

in which the judiciary will not intervene as long as procedural due process

requirements have been met.” LeTourneur v. INS, 538 F.2d 1368, 1370 (9th Cir.

1976). Severiano-Badillo does not assert that he did not receive notice that his

2011 removal order would be reinstated, or that he did not have a fair and

reasonable hearing. “This [C]ourt has also held that deportation is not cruel and

unusual punishment under the Eighth Amendment even though the penalty may be

severe.” Id. Thus, neither the Fifth nor Eighth Amendment requires DHS to

consider whether reinstatement is proportionate.

Severiano-Badillo also argues that the DHS’s policy of removing aliens

under 8 U.S.C. § 1231(a)(5), the Immigration and Nationality Act’s (“INA”)

2 reinstatement provision, was arbitrary and capricious in this case, because it does

not permit the Immigration Judge to review the DHS’s reinstatement order. This

Court has held that 8 C.F.R. § 241.8—the regulation implementing 8 U.S.C.

§ 1231(a)(5)—is a “valid interpretation of the INA.” Morales-Izquierdo v.

Gonzales, 486 F.3d 484, 495 (9th Cir. 2007) (en banc). Reinstatement “can be

performed like any other ministerial enforcement action.” Id. at 491. Therefore,

delegating that reinstatement inquiry to the DHS, rather than to the Immigration

Judge, was not arbitrary and capricious. See id. at 495.

Additionally, 8 C.F.R § 241.8 provides “significant procedural safeguards”

for reinstatement decisions. Morales-Izquierdo, 486 F.3d at 495. Severiano-

Badillo does not argue that DHS failed to satisfy these procedural safeguards.

Accordingly, the reinstatement process in this case was not arbitrary and

capricious.

For these reasons, Severiano-Badillo’s petition for review and his

accompanying motion to stay removal are DENIED.