Vaupel v. Ortiz

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 9, 2007
• Docket: 06-1103
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS August 9, 2007 FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court

JON STEPHA N V AU PEL,

Petitioner-A ppellant,

v. No. 06-1103 (D.C. No. 05-cv-327-W DM -M JW ) M ARIO ORTIZ; J. ALEXAN DER; (D . Colo.) M ICHAEL CHERTOFF; M ICHAEL J. GARC IA; ALBERTO GONZA LES,

Respondents-Appellees.

OR D ER AND JUDGM ENT *

Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges.

Petitioner Jon Stephan Vaupel appeals from the district court’s denial of his

petition for writ of habeas corpus under 28 U.S.C. § 2241. On appeal, he

challenges the validity of an expedited removal order and his continued detention.

W e dismiss the appeal for lack of jurisdiction.

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. I. Background

M r. Vaupel is an Australian citizen. He married a United States citizen,

Stacy Schwab, in 2002. Prior to 2003, he entered the United States several times

under the Visa W aiver Program (“VW P”). See 8 U.S.C. § 1187. Under the VW P,

nonimmigrant visitors from certain participating countries may enter and remain

in the United States for a period not exceeding 90 days, without having to obtain

and present a visa. See id. § 1187(a). He admits that he overstayed his

authorized 90-day period on at least one occasion. On January 31, 2003, he again

attempted to enter the United States under the VW P, but his application was

denied based on his previous overstay. At that time he was enroute to the United

States to be with M s. Schwab, who was experiencing medical complications in

connection with the birth of the couple’s child. Based on the circumstances,

M r. V aupel was granted humanitarian parole into the United States for 30 days.

See 8 U.S.C. § 1182(d)(5)(A ). His period of parole w as later extended to

M arch 7, 2003. On that date he and M s. Schwab signed application forms to

adjust M r. Vaupel’s status to legal permanent resident (“LPR”), based upon his

marriage to a United States citizen. Their application forms w ere not filed until

April 10, 2003.

A year later, in A pril 2004, M s. Schwab was arrested and charged with

harassment and child abuse following an altercation with M r. Vaupel. In June

2004, he was arrested and charged with menacing and harassment of M s. Schwab,

-2- as well as forgery related to false identification documents. M s. Schwab

withdrew her petition in support of M r. Vaupel’s application to become an LPR

on June 25, 2004. C onsequently, his application was automatically denied. He

filed a divorce petition in Colorado state court on July 2.

M r. Vaupel was detained by Immigration and Customs Enforcement

(“ICE”) on October 12, 2004. On October 14, ICE issued a Determination of

Inadmissibility and Order of Removal. The Determination of Inadmissibility

stated that M r. Vaupel was inadmissible under 8 U.S.C. § 1182(a)(7)(A)(i)(I)

because his application under the VW P had been denied and he thereafter failed

to depart the United States following expiration of his period of parole. It stated

further that he was “an immigrant not in possession of a valid, unexpired

immigrant visa and [he was] not exempt from having one.” R., Doc. 12,

Ex. A-16. The Order of Removal found him inadmissible as charged and ordered

him removed from the United States under 8 U.S.C. § 1225(b)(1), which provides

for “expedited removal” of certain inadmissible arriving aliens. On October 15,

M r. Vaupel submitted a Violence Against W omen Act (“VAW A”) petition

seeking to self-adjust to LPR status on the ground that he is a former spouse of an

abusive United States citizen.

M r. Vaupel filed his habeas petition in the district court on February 22,

2005, alleging that he was being held illegally and asking the court to enjoin

respondents from deporting him. He also sought interim relief, seeking to be

-3- released from detention pending resolution of his habeas petition or a

determination on his VAW A petition, whichever occurred later. The district court

issued an order to show cause why the petition for writ of habeas corpus should

not be granted and respondents then filed motions to dismiss the petition. The

district court referred the motions to dismiss and M r. Vaupel’s motion for interim

relief to a magistrate judge, who recommended granting respondents’ motions and

denying M r. Vaupel’s motion. The district court adopted in part the magistrate

judge’s recommendations, denied the habeas petition and denied the motion for

interim relief. M r. Vaupel filed a timely notice of appeal. On February 25, 2007,

he was deported.

II. Discussion

W e must first determine whether we have jurisdiction to review any of the

claims on appeal.

A. Challenges to the Expedited Rem oval Order

M r. Vaupel makes several arguments addressing the validity of the

expedited removal order entered pursuant to § 1225(b)(1): (1) he is not an

inadmissible arriving alien subject to expedited removal because (i) he was

improperly granted humanitarian parole when other options for relief were

available and (ii) he was eligible for an exception to inadmissibility as a VAW A

petitioner under 8 U.S.C. § 1182(a)(6)(A )(ii); (2) expedited removal is

-4- inapplicable to VW P applicants; and (3) the expedited removal procedures denied

him due process.

The scope of judicial review of orders of removal under § 1225(b)(1) is

extremely narrow. W ith very limited exceptions, “no court shall have jurisdiction

to review . . . any individual determination or to entertain any other cause or

claim arising from or relating to the implementation or operation of an order of

removal pursuant to section 1225(b)(1).” 8 U.S.C. § 1252(a)(2)(A)(i).

Specifically, no court has jurisdiction to review “a decision by the Attorney

General to invoke the provisions of [§ 1225(b)(1)],” “the application of [that]

section to individual aliens,” or “procedures and policies adopted by the Attorney

General to implement [that section].” Id. at § 1252(a)(2)(A)(ii) - (iv). Judicial

review of determinations made under § 1225(b)(1) is available in habeas corpus

proceedings, but such review is

limited to determinations of– (A) whether the petitioner is an alien, (B) whether the petitioner was ordered removed under such section, and (C) whether the petitioner can prove by a preponderance of the evidence that the petitioner is an alien lawfully admitted for permanent residence, has been admitted as a refugee . . . or has been granted asylum.

Id. at § 1252(e)(2)(A )-(C). Section 1252(e)(5) provides further that:

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

-5- petitioner. There shall be no review of whether the alien is actually inadmissible or entitled to any relief from removal.

The district court recognized the limited scope of its jurisdiction to review

the validity of M r. Vaupel’s expedited removal order and therefore considered

only whether he is an alien, whether he was ordered removed under § 1225(b)(1),

and whether he could prove he was an LPR, had been admitted as a refugee, or

had been granted asylum. He does not assert that the district court’s findings on

these issues were in error. But he argues that the district court erred in construing

the scope of its jurisdiction under § 1252(e) too narrowly. For this proposition he

relies on a district court case from outside this circuit which held that, in

ascertaining whether an order of removal “relates to” the alien under

§ 1252(e)(5), a court may determine whether the expedited removal statute was

lawfully applied to the alien. See Am.-Arab Anti-Discrimination Comm. v.

Ashcroft, 272 F. Supp. 2d 650, 663 (E.D. M ich. 2003). W e respectfully disagree.

The language of the statute clearly and unambiguously precludes review in a

habeas proceeding of “whether the alien is actually inadmissible or entitled to any

relief from removal.” 8 U.S.C. § 1252(e)(5). See also Brumme v. INS, 275 F.3d

443, 447-48 (5th Cir. 2001) (rejecting claim that § 1252(e) permits habeas review

of whether § 1225(b)(1) was applicable to petitioner); Li v. Eddy, 259 F.3d 1132,

1134 (9th Cir. 2001) (“On its face, [§ 1252(e)(2)] does not appear to permit the

court to inquire into whether section 1225(b)(1) was properly invoked, but only

-6- whether it was invoked at all. W ere there any doubt of congressional intent, it is

resolved by [§ 1252(e)(5)], that expressly declares that judicial review does not

extend to actual admissibility.”), vacated as moot, 324 F.3d 1109 (9th Cir. 2003).

M r. Vaupel does not specifically address whether we have jurisdiction to

consider his claim that the expedited removal procedures violate his right to due

process. Respondents assert, without supporting citation, that the court has

jurisdiction because he presents a constitutional challenge to the expedited

removal procedures. W e hold that under § 1252(a)(2)(A) we do not have

jurisdiction to consider that claim. Nor is there an exception in § 1252(e)

providing authority to review constitutional claims related to the application of

§ 1225(b)(1). 1 M oreover, § 1252(e)(3) sets forth the process for bringing a

constitutional challenge to § 1225(b) or its implementing regulations. Such a

claim may be brought in the United States District Court for the District of

Columbia and must have been filed no later than 60 days after the date the

challenged section or regulation was first implemented. See id. at

§ 1252(e)(3)(A )-(B); see also Am. Immigration Lawyers Ass’n v. Reno,

18 F. Supp. 2d 38, 46-7, 60 (D.D.C. 1998) (dismissing as time-barred aliens’

1 In another context, Congress has specifically authorized judicial review of constitutional claims, notwithstanding statutory limitations on judicial review. See 8 U.S.C. § 1252(a)(2)(D). But that provision applies to the construction of subparagraphs (B) and (C) of § 1252(a)(2), which are inapplicable here, and explicitly does not apply to other provisions of § 1252 limiting judicial review. It is also applicable only to constitutional claims raised in petitions for review filed in an appropriate court of appeals. See id. § 1252(a)(2)(D).

-7- claims filed beyond the 60-day deadline; dismissing on the merits other aliens’

timely due process challenge to expedited removal procedures). Thus, to the

extent M r. Vaupel raises a systemic challenge to the constitutionality of the

expedited removal procedures, such a claim may not be brought in the courts in

this circuit. See Li, 259 F.3d at 1136 (holding under § 1252(e)(3) that alien’s

challenge to expedited removal system could not be brought in courts in Ninth

Circuit).

Because M r. Vaupel’s claims on appeal seek review of the expedited

removal order beyond the limited scope of review permitted in habeas corpus

proceedings by § 1252(e), we do not have jurisdiction to consider them.

B. Challenges to Continued D etention

M r. Vaupel also contends that his continued detention in ICE custody for

over two years, w ithout an opportunity for supervised release, is contrary to

statute and violates his constitutional rights of due process and equal protection.

He argues as w ell that the district court erred in denying his request for interim

relief from detention. After making these contentions in his opening appeal brief,

M r. Vaupel was released from detention upon his removal to Australia in

February 2007. W e must therefore consider whether these claims regarding his

previous detention are now moot. See Riley v. INS, 310 F.3d 1253, 1256-57

(10th Cir. 2002).

-8- Our inquiry then becomes whether Appellant meets one of the exceptions to the mootness doctrine. W e will not dismiss a petition as moot if (1) secondary or collateral injuries survive after resolution of the primary injury; (2) the issue is deemed a wrong capable of repetition yet evading review; (3) the defendant voluntarily ceases an allegedly illegal practice but is free to resume it at any time; or (4) it is a properly certified class action suit.

Id. (holding that claim in habeas petition for release from detention was moot

after petitioner w as granted supervised release) (quotations omitted).

Based on the record before us, none of these exceptions applies in this case.

Notably, M r. Vaupel did not make a claim for damages in his habeas petition,

seeking instead only a release from custody and declaratory relief. See R., Doc. 1

at 19. Thus, he has not demonstrated any secondary or collateral injury surviving

his detention. See Ferry v. Gonzales, 457 F.3d 1117, 1132 (10th Cir. 2006)

(holding that challenge to detention without opportunity for bond was mooted by

deportation where petitioner did not seek monetary damages for loss of liberty or

consortium); see also Abdala v. INS, 488 F.3d 1061, 1064-65 (9th Cir. 2007)

(collecting cases where habeas claims were fully resolved and rendered moot by

release from custody). W e decline to issue an advisory opinion regarding the

legality of M r. Vaupel’s detention, “because a declaratory judgment on that

question would have no meaningful effect on the [Department of Homeland

Security’s] future conduct towards [him].” Ferry, 457 F.3d at 1132.

-9- C. Rem aining Claim s on Appeal

M r. Vaupel also contends on appeal that his due process rights would be

violated if he were removed to Australia prior to a determination on his VAW A

petition. But in the same brief he waived his only requested relief on this claim

by withdrawing “any and all requests for a stay of removal.” Aplt. Opening Br. at

48. Therefore, we hold that M r. Vaupel has w aived appellate review of this

claim. Even without this express waiver, we would conclude that this claim is

also mooted by M r. Vaupel’s deportation because he has not demonstrated a

collateral injury surviving his removal. W e agree with the district court that there

is no basis to his claim that his removal would prevent the continued adjudication

of his VAW A petition. See R., Doc. 12, Ex. A-19 at 2 (declaration by

representative of agency processing petition that it would not be abandoned upon

him leaving the U nited States).

Finally, he raises two additional claims on appeal. He contends that the

district court abused its discretion in denying him leave to file a supplemental

brief. He also argues that the district court erred in granting the motion to

dismiss by respondents M ario Ortiz, M ichael Chertoff, M ichael J. Garcia, and

Alberto G onzales on the basis that they did not have custody of M r. Vaupel. In

light of our previous rulings that we lack jurisdiction to consider his other claims

on appeal, we find it unnecessary to decide these issues. Even if M r. Vaupel were

to prevail on either or both of these claims of error, the resulting determination

-10- would have no impact on his ability to obtain the relief he seeks in his habeas

petition or on the outcome of this appeal. See United States v. Torres, 182 F.3d

1156, 1164 & n.2 (10th Cir. 1999) (finding “no reason to abandon principles of

judicial restraint and render an opinion that is unnecessary and meaningless as

applied to the defendant in this case”).

III. Conclusion

W e do not have jurisdiction to consider M r. Vaupel’s claims on appeal

challenging the validity of the expedited removal order. His claims related to his

continued detention are moot. We therefore DISM ISS the appeal. His motion to

proceed in forma pauperis is G RANTED.

Entered for the Court

David M . Ebel Circuit Judge

-11-