Francisca Morales de Soto v. Eric Holder, Jr.

Filing

Filed order and amended opinion (RICHARD R. CLIFTON, SANDRA S. IKUTA and FREDERIC BLOCK). Amending Disposition Opinion DENIED The opinion filed on May 31, 2016, is hereby amended as follows: (SEE ORDER FOR FULL TEXT) With these amendments, the panel has voted to deny the petition for panel rehearing. Judges Clifton and Ikuta have voted to deny the petition for rehearing en banc and Judge Block has so recommended. The Petition for Rehearing En Banc has been circulated to the full court, and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. The petitions for panel rehearing and rehearing en banc are DENIED. No further petition for rehearing may be filed. [10105618]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

FRANCISCA MORALES DE SOTO,
Petitioner,
v.

No. 09-72122
Agency No.
A086-968-871

LORETTA E. LYNCH, Attorney
General,
Respondent.

ORDER AND
AMENDED
OPINION

On Petition for Review of an Order of the
Department of Homeland Security
Argued and Submitted March 9, 2016
Pasadena, California
Filed May 31, 2016
Amended August 30, 2016
Before: Richard R. Clifton and Sandra S. Ikuta, Circuit
Judges and Frederic Block,* Senior District Judge.
Order;
Opinion by Judge Clifton

*

The Honorable Frederic Block, Senior U.S. District Judge for the
Eastern District of New York, sitting by designation.

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SUMMARY**

Immigration
The panel denied Francisca Morales de Soto’s petition for
review of the reinstatement by the Immigration and Customs
Enforcement agency of the Department of Homeland Security
of a prior expedited removal order issued against her.
The panel held that nothing in the facts of Morales’s case
justified remand for reconsideration of the reinstated
removal order. The panel held that an agency’s intervening
memoranda pertaining to the exercise of prosecutorial
discretion that do not change the law to be applied by an
appellate court do not require remand to the agency.
The panel also held that Immigration and Customs
Enforcement did not abuse its discretion in reinstating
removal before allowing Morales to exhaust her
administrative appeals from the denial of her separate petition
for consent to reapply for admission. The panel held that
there is no legal requirement for the government to wait until
all other administrative appeals have been exhausted before
reinstating 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.

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COUNSEL
Stacy Tolchin (argued), Law Offices of Stacy Tolchin, Los
Angeles, California, for Petitioner.
Lindsay M. Murphy (argued), Julia J. Tyler, Trial Attorneys;
Shelley R. Goad, Assistant Director; Stuart F. Delery,
Assistant Attorney General; United States Department of
Justice, Office of Immigration Litigation, Civil Division,
Washington D.C.; for Respondent.

ORDER
The opinion filed on May 31, 2016, is hereby amended as
follows:
1. On page 5 of the slip opinion, in the first full
paragraph, the following sentence should be added after the
sentence ending with “Morales does not challenge the
legitimacy of her January 2000 expedited order of removal.”
Her petition therefore does not fall afoul of
the INA’s jurisdictional bar against
collaterally attacking expedited orders of
removal. See Garcia de Rincon v. Dep’t of
Homeland Sec., 539 F.3d 1133, 1139 (9th Cir.
2008).
2. On page 7 of the slip opinion, in the second paragraph,
the citation to Garcia de Rincon v. Dep’t of Homeland Sec.
on the fifth line of that paragraph should be changed to
“Garcia de Rincon, 539 F.3d at 1136.”

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With these amendments, the panel has voted to deny the
petition for panel rehearing. Judges Clifton and Ikuta have
voted to deny the petition for rehearing en banc and Judge
Block has so recommended.
The Petition for Rehearing En Banc has been circulated
to the full court, and no judge has requested a vote on
whether to rehear the matter en banc. Fed. R. App. P. 35.
The petitions for panel rehearing and rehearing en banc
are DENIED. No further petition for rehearing may be filed.

OPINION
CLIFTON, Circuit Judge:
Francisca Morales de Soto, a Mexican native and citizen,
petitions for review of the government’s reinstatement of a
removal order issued in 2000. The Immigration and Customs
Enforcement (“ICE”) agency of the Department of Homeland
Security (“DHS”) first notified Morales of its intention to
reinstate removal in 2009. Since that time, the government
has revised its policies regarding the exercise of prosecutorial
discretion in immigration proceedings. Morales asks this
court to remand her case so that the agency can reconsider the
exercise of its discretion in light of those changed policies.
We conclude that remand of a decision to reinstate removal
is not warranted in these circumstances. We also reject
Morales’s claim that ICE abused its discretion in reinstating
removal before Morales could exhaust her appeals from a
separate petition to reapply for admission to the United
States. We deny the petition for review.

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I. Background
Francisca Morales de Soto attempted to enter the United
States on January 21, 2000, at the border crossing in
Calexico, California. Because she lacked a legal visa, she was
issued a Notice and Order of Expedited Removal and was
removed back to Mexico. Later that same month, Morales
reentered the United States without inspection and has resided
here ever since. She now lives with her husband and three
minor children, all four of whom are U.S. citizens.
In July 2007, Morales filed an application to adjust her
status to that of a lawful permanent resident based on
petitions filed by her husband and her brother, who is also a
U.S. citizen. She also filed a Form I-212, Application for
Permission to Reapply for Admission into the United States
after Deportation or Removal, and a Form I-601, Application
for Waiver of Grounds of Inadmissibility. All three
applications were denied because she had previously been
removed and had failed to meet the requirements to obtain
consent to reapply to the United States.1 Her case was
referred to ICE, which notified her on July 9, 2009, of its
intention to reinstate her prior order of removal. Morales filed

1

Unlawful reentry into the United States following an expedited
removal order renders an alien permanently inadmissible and therefore
ineligible for adjustment of status. 8 U.S.C. § 1182(a)(9)(C)(i)(II). An
alien in these circumstances is only eligible to seek a waiver of
inadmissiblity if she has been absent from the United States for more than
ten years and has received the consent of the Secretary of Homeland
Security. 8 U.S.C. § 1182(a)(9)(C)(ii); see also Gonzales v. Dep’t of
Homeland Sec., 508 F.3d 1227, 1242 (9th Cir. 2007). Morales applied for
consent to reapply for admission into the United States while she was
unlawfully present within the country and was therefore ineligible for
either consent to reapply or a waiver of inadmissiblity.

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a petition for review by this court that same day and received
a stay of removal. We now address that petition.
II. Jurisdiction
The Immigration and Nationality Act (INA) substantially
limits this court’s review of a prior order of removal that has
been reinstated by the government. 8 U.S.C. § 1231(a)(5).
However, we retain jurisdiction to review the reinstatement
order itself under 8 U.S.C. § 1252(a)(1). See Castro-Cortez v.
I.N.S., 239 F.3d 1037, 1043–44 (9th Cir. 2001), abrogated on
other grounds by Fernandez-Vargas v. Gonzales, 548 U.S. 30
(2006). In her petition, Morales does not challenge the
legitimacy of her January 2000 expedited order of removal.
Her petition therefore does not fall afoul of the INA’s
jurisdictional bar against collaterally attacking expedited
orders of removal. See Garcia de Rincon v. Dep’t of
Homeland Sec., 539 F.3d 1133, 1139 (9th Cir. 2008).
Instead, she limits her appeal to the manner in which ICE
decided to issue the reinstatement order against her. We
therefore have jurisdiction over the petition.
III.

Discussion

When an alien has unlawfully reentered the United States
after being subject to a prior order of removal, the INA allows
the government to reinstate the prior order of removal rather
than undertake removal proceedings a second time. 8 U.S.C.
§ 1231(a)(5). The only factual predicates for reinstatement
are that “(1) petitioner is an alien, (2) who was subject to a
prior removal order, and (3) who illegally reentered the
United States.” Morales-Izquierdo v. Gonzales, 486 F.3d 484,
495 (9th Cir. 2007) (en banc). In most cases, immigration

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officers make such reinstatement decisions without a hearing
before an immigration judge. See id. at 487–88.
There is, however, no requirement that ICE reinstate
removal in all cases, even when these factual predicates are
met. Reinstatement of removal is neither “automatic” nor
“obligatory.” Villa-Anguiano v. Holder, 727 F.3d 873, 878
(9th Cir. 2013). As an alternative to reinstatement, ICE has
the prosecutorial discretion to initiate a new removal
proceeding before an immigration judge. In this case, ICE
chose not to exercise that discretion and instead reinstated
Morales’s prior removal order without providing for a
hearing.
Morales, acknowledging that we cannot review the merits
of ICE’s exercise of its prosecutorial discretion, does not
contest the validity of ICE’s decision in 2009 to reinstate
removal. She instead contends that changed circumstances
since ICE initially made its decision in 2009 require us to
remand her case so that ICE can reconsider the exercise of its
discretion.
Morales makes two arguments. First, she contends that
remand is necessary because of changes in ICE’s internal
policies surrounding the exercise of prosecutorial discretion.
Second, she argues that the reinstatement of removal was
premature and that remand is required as a remedy for that
error. Neither argument has merit.
A. Changes in ICE prosecutorial discretion policies
Since July 2009, when ICE first notified Morales of its
intention to reinstate removal, ICE has released a number of
memoranda pertaining to its exercise of prosecutorial

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discretion. Morales’s petition focuses on two of these
memoranda. The first memorandum was issued by John
Morton, then the Director of ICE, in 2011. Memorandum
from John Morton, Director of ICE, on Exercising
Prosecutorial Discretion Consistent with the Civil
Immigration Enforcement Priorities of the Agency for the
Apprehension, Detention, and Removal of Aliens (June 17,
2011), (hereinafter “Morton Memo”).2 The second
memorandum was issued by John Sandweg, then the Acting
Director of ICE, in 2013. Memorandum from John Sandweg,
Acting Director of ICE, on Facilitating Parental Interests in
the Course of Civil Immigration Enforcement Activities
(August 23, 2013), (hereinafter “Sandweg Memo”).3 The
Morton Memo listed factors that ICE agents should consider
when weighing the exercise of prosecutorial discretion,
including factors relevant to Morales, such as the alien’s
length of presence in the United States and her family ties to
the country. Morton Memo at 4–5. The Sandweg Memo
focused on the treatment of alien parents of minor children,
stressing the need for ICE agents to consider “whether the
alien is a parent or legal guardian of a [U.S.-citizen] or [legal
permanent resident] minor” when exercising prosecutorial
discretion. Sandweg Memo at 3.
Morales argues that these memos constitute an
intervening change in ICE policies since her removal was

2

The Morton Memo is currently available at
https://www.ice.gov/doclib/secure-communities/pdf/prosecutorialdiscretion-memo.pdf (last checked May 17, 2016).
3

The Sandweg Memo is currently available at
https://www.ice.gov/doclib/detention-reform/pdf/parental_interest
_directive_signed.pdf (last checked May 17, 2016).

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reinstated, necessitating a remand under ordinary principles
of administrative law. Reviewing this question of law de
novo, Garcia de Rincon, 539 F.3d at 1136, we disagree.
To begin with, we know from experience that ICE may
reconsider the exercise of its discretion regardless of whether
we remand Morales’s petition. Indeed, the government may
reconsider its position while a petition is pending before us.
In recent years our court has remanded dozens of pending
petitions at the government’s request. Moreover, the
government represents that Morales made a specific request
to DHS that discretion be exercised in her favor after the
Morton Memo was issued and that the request was explicitly
declined. Remand is obviously not necessary to permit the
agency to exercise discretion of this kind.
There are circumstances where remand is appropriate
after there has been a change in applicable agency policy. An
appellate court “reviewing an agency decision following an
intervening change of policy by the agency should remand to
permit the agency to decide in the first instance whether
giving the change retrospective effect will best effectuate the
policies underlying the agency’s governing act.” NLRB v.
Food Store Emps. Union, Local 347, 417 U.S. 1, 10 n.10
(1974). This requirement arises from “the intersection of two
well-established doctrines.” Panhandle E. Pipeline Co. v.
FERC, 890 F.2d 435, 438 (D.C. Cir. 1989). The first is that a
reviewing court must apply “the law in effect at the time it
renders its decisions, even when a change in governing law is
made by an administrative agency.” Id. at 438–39 (citing
Thorpe v. Housing Auth., 393 U.S. 268, 281–82 (1969)). The
second is that “a reviewing court may ‘not supply a reasoned
basis for the agency’s action that the agency itself has not

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given.’” Id. at 439 (quoting Motor Vehicles Mfrs. Ass’n v.
State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43 (1983)).
But the Food Store doctrine does not apply to a case, like
this one, involving review of a purely discretionary decision
by an agency. The Morton and Sandweg Memos speak only
to the exercise of prosecutorial discretion and do not create or
modify the law to be applied by this or any other court. Aside
from constitutional claims or questions of law reviewable
under 8 U.S.C. § 1252, we have no authority to review the
merits of ICE’s discretionary decision to reinstate a prior
removal order in situations where the factual predicates for
reinstatement are met. 8 U.S.C. § 1252(a)(2)(B). This reflects
the understanding that “an agency’s decision not to prosecute
or enforce, whether through civil or criminal process, is a
decision generally committed to an agency’s absolute
discretion” and is not amenable to judicial review. Heckler v.
Chaney, 470 U.S. 821, 831 (1985).4 As such, changes in
departmental policies surrounding the factors to be
considered or emphasized when exercising that discretion do
not in any sense change the law to be applied by courts. There
is consequently no reason nor need to remand a case to the
agency following intervening changes in policy regarding the
exercise of agency discretion.

4

We recognize that Heckler involved the decision not to enforce agency
regulations, while this case involves the contrary decision to enforce.
Heckler, 470 U.S. at 851. Nonetheless, the same need for “a complicated
balancing of a number of factors . . . peculiarly within [an agency’s]
expertise” that caution against reviewing an agency decision not to
enforce, id. at 831, similarly counsel against involving courts in purely
discretionary agency decisions where there is “no law to apply,” id. at 830
(quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402,
410 (1971)).

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Moreover, it is unclear that the memos at issue in this
case can even be properly characterized as changes in agency
policy. Both memoranda specifically state that they “are not
intended to, do not, and may not be relied upon to create any
right or benefit, substantive or procedural, enforceable at law
by any party in any administrative, civil, or criminal matter.”
Sandweg Memo at 9; see also Morton Memo at 6. By
contrast, the Supreme Court’s decision in Food Store
involved a change in policy announced by the National Labor
Relations Board in a formal and binding adjudication.
Morales has pointed to no case holding that remand is
required in response to the issuing of a memo with as little
legal force as the memos at issue here.5
Morales cites to our opinion in Villa-Anguiano as a case
where we did vacate and remand a reinstatement order for
reconsideration because of intervening circumstances. That
case presented a rare situation where a federal district court
had an independent reason to examine the validity of a
previous removal proceeding. The government had initiated
a criminal prosecution for illegal reentry based on that
previous removal. In the course of that prosecution, the
district court concluded that Villa-Anguiano had been
deprived of his right to counsel at the removal proceeding and
had been prejudiced by the resulting due process violation,
and so held that the removal order was invalid as the
predicate for a criminal prosecution under 8 U.S.C. § 1326.
5

The decision by the Fifth Circuit in Texas v. United States, 809 F.3d
134 (5th Cir. 2015), currently before the Supreme Court, which upheld a
preliminary injunction forbidding implementation of the Deferred Action
for Parents of Americans and Lawful Permanent Residents program
(DAPA), does not affect the resolution of this case. Neither party raised
any argument regarding the DAPA Memo and the DAPA Memo does not
concern the decision to reinstate removal.

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Villa-Anguiano, 727 F.3d at 876. We held that when “the
government itself invites judicial scrutiny of the underlying
removal order by instigating a criminal prosecution under
§ 1326” and “as a result of such scrutiny, a district court finds
constitutional infirmities in the prior removal proceedings
that invalidate the prior removal for purposes of criminal
prosecution,” the agency must “(1) provide the alien with an
opportunity after the criminal prosecution is dismissed to
make a written or oral statement addressing the expedited
reinstatement determination in light of the facts found and the
legal conclusions reached in the course of the criminal case;
and (2) independently reassess whether to rely on the order
issued in the prior proceedings as the basis for deportation or
instead to instigate full removal proceedings.” Id. at 880. That
situation is entirely distinct from the circumstances of this
case. Indeed, we recognized in Villa-Anguiano that “the
pendency of reinstatement proceedings does not provide an
alien with a new avenue to challenge the underlying removal
order.” Id.
Morales has not pointed to any change at all in her
circumstances since removal was reinstated in 2009, let alone
a change as significant as the district court decision in VillaAnguiano. Further, we emphasized in Villa-Anguiano that
there was evidence within the administrative record that ICE
had either failed to consider or had misunderstood the district
court’s conclusion that the prior removal order violated due
process, id. at 877, and the government acknowledged that
“had it known of the district court’s findings, it quite possibly
would have exercised its discretion not to pursue
reinstatement” of the removal order, id. at 882. By contrast,
there is no evidence here that ICE failed to consider any
factors relevant to its discretionary decision to reinstate
Morales’s removal order.

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Morales argues that there is no requirement that she
highlight any particular fact that ICE failed to properly
consider. In her view, the reinstatement order against her
violated due process because it did not specifically set forth
ICE’s reasons for exercising its prosecutorial discretion to
reinstate removal.
This argument fundamentally misunderstands the role
played by courts in reviewing discretionary decisions. It is
true that when reviewing ordinary agency action we have
held that an agency “abuses its discretion when it fails to
provide a reasoned explanation for its actions.” Movsisian v.
Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005) (listing cases
in the immigration context). Effective judicial review is
impossible in such circumstances if the agency does not show
its work. But, as we have already explained, the exercise of
prosecutorial discretion is a type of government action
uniquely shielded from and unsuited to judicial intervention.
In the context of criminal prosecutions we have repeatedly
held that we have little authority to review prosecutors’
charging decisions. See United States v. Banuelos-Rodriguez,
215 F.3d 969, 976–77 (9th Cir. 2000) (collecting cases). We
see no reason to act differently when the consequence of that
discretion is removal rather than jail time. Indeed, the costs to
judicial intervention in prosecutorial decisionmaking are
arguably “greatly magnified in the deportation context.” Reno
v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 490
(1999) (listing the dangers associated with allowing for
selective prosecution claims in the context of immigration).
There are, of course, limited situations that might call for
courts to consider the government’s reasons for exercising
prosecutorial discretion. In the context of challenging a
criminal indictment, for example, where a criminal defendant

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can show sufficient facts to create a reasonable likelihood that
the prosecution was vindictive, the burden shifts to the
government to provide “objective evidence justifying the
prosecutor’s action.” United States v. Jenkins, 504 F.3d 694,
701 (9th Cir. 2007) (quoting United States v. Goodwin, 457
U.S. 368, 376 n.8 (1982)). In the removal context, in VillaAnguiano, we vacated and remanded the reinstated removal
order to allow ICE to reassess its decision to reinstate
removal in circumstances where it was clear that the agency
had not considered or been presented with the district court’s
decision invalidating the underlying removal order and might
have exercised its discretion differently had it known. We
acknowledged that “[o]nce ICE complies with these
constitutional requirements, it may exercise its lawful
discretion however it sees fit,” and “need not ‘reach a
different result’ on remand.” Villa-Anguiano, 727 F.3d at 880
n.7. Outside of those and similar “unusual instance[s],” due
process does not require that courts interrogate an agency’s
decision to exercise prosecutorial discretion. We decline to
remand Morales’s case for reconsideration.
B. The timing of the reinstatement of removal
Morales’s second argument in favor of remand is that ICE
erred in deciding to reinstate removal before allowing her to
exhaust her appeal of DHS’s denial of her I-212 application
for consent to reapply for admission.
The government denied Morales’s I-212 application on
June 24, 2009 before reinstating removal soon afterwards on
July 9. Morales then filed her administrative appeal of the
denial of the I-212 waiver on July 23. Morales now concedes
that as a matter of law she is not eligible for an I-212 waiver,
but she nonetheless contends that the government abused its

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discretion in not waiting to reinstate removal until the
expiration of the period for her to appeal the I-212 denial and
the exhaustion of the eventual appeal.6 We disagree. There is
no legal requirement for the government to wait until all other
administrative appeals have been exhausted before reinstating
removal.
Under 8 C.F.R. § 103.3(a)(2), an alien whose application
for I-212 consent to reapply for admission has been denied
may appeal that denial within 30 days (with an additional
three days allowed for service by mail under 8 C.F.R.
§ 103.8(b)). If the alien were to be successful in her appeal,
the receipt of an I-212 waiver would allow her to avoid
application of the reinstatement provision. Gonzales v. Dep’t
of Homeland Sec., 508 F.3d 1227, 1242 (9th Cir. 2007). But
those regulations do not require the government to postpone
all other agency action while waiting for the appeal, nor do
they require that removal be postponed once the appeal has
been filed.
Our decision in Ahmed v. Holder, where we held that an
Immigration Judge abused her discretion in denying an
alien’s request for continuance of his removal proceedings
pending his appeal of the denial of a visa application, is not
to the contrary. Ahmed v. Holder, 569 F.3d 1009, 1015 (9th
Cir. 2009). Unlike the petitioner in that case, Morales did not
request a continuance from the agency. That case involved
formal removal proceeding, not reinstatement of removal as
here. And, the petitioner in Ahmed at least had a possibility
of succeeding in his appeal. See id. at 1013. In this case,

6

We note that the government has never officially denied Morales’s
appeal, although, as Morales acknowledges, it has ample legal grounds to
do so.

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however, Morales concedes her ineligibility for an I-212
waiver. The government did not err in reinstating removal
before Morales had filed her I-212 appeal.
IV.

Conclusion

In sum, we conclude that there is nothing in the facts of
Morales’s case justifying remand to ICE for it to reconsider
its decision to reinstate her prior expedited removal order.
Intervening agency memoranda that do not change the law to
be applied by an appellate court do not require remand to the
agency. Nor was ICE required to explain its reasoning when
exercising its prosecutorial discretion to reinstate Morales’s
removal order. Finally, ICE was not required to wait until all
of Morales’s administrative appeals had concluded before
reinstating removal. We deny the petition for review.7
PETITION FOR REVIEW DENIED.

7

We grant Petitioner’s unopposed motion to accept the stipulated
supplemental record.