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The Fifth Circuit Gets Back Up On Expedited Removal Proceedings

The Fourth Circuit sides with the Fifth Circuit on Immigration Removal Jurisdiction

The Fourth Circuit has joined the Fifth Circuit in holding that an immigrant facing expedited removal can challenge the legal basis for his or her deportation without first exhausting all administrative proceedings. Etienne v. Lynch, No. 14-2013, 2015 U.S. App. LEXIS 22873, at *1 (4th Cir. Dec. 30, 2015).

In Etienne v. Lynch, Etienne arrived in the United States as an undocumented immigrant in 1984. Id. at *2. Etienne later pleaded guilty in 1996 to the Maryland state crime of conspiracy to sell dangerous substances within the State, and continued to live in the United States without documentation after he was released. Id. After the 2010 earthquakes in Haiti, Etienne applied for, and received, Temporary Protected Status which allowed him to stay in the United States. Id. at *3. The Department of Homeland Security (“DHS”) denied Etienne’s 2014 renewal application however, and decided instead to initiate a final removal proceeding against him. Id. DHS served Etienne with a Notice of Intent that informed him that he was to be deported “for being an alien convicted of an ‘aggravated felony’ – his 1996 conspiracy conviction.” Id. The Notice of Intent also stated that Etienne would be removed pursuant to expedited procedures which meant that Etienne would not have a hearing before an immigration judge, but did have ten days to challenge the DHS proceedings against him. Id. Etienne marked two checkboxes on the reply forms telling DHS he intended to contest his removal and would attach documents to support his challenge. Id. Etienne did not, however, provide any information that contested the classification of his 1996 conspiracy disposition as an “aggravated felony.” Id. at *3-*4. DHS subsequently issued a final removal order which was approved by an immigration judge. Id. at *4. Etienne then filed for judicial review arguing that the 1996 conviction was not an “aggravated felony,” and that he should not be deported. Id. The applicable statute explained that an individual may challenge a removal order only if “the [individual] has exhausted all administrative remedies available to the alien as of right.” Id. at *5 (quoting 8 U.S.C. §1252 (d)(1)). Further, if an illegal immigrant “has an opportunity to raise a claim in administrative proceedings, but does not do so, he fails to exhaust his administrative remedies as to that claim.” Etienne v. Lynch, 2015 U.S. App. LEXIS 22873, at *5 (citing Massis v. Mukasey, 549 F.3d 631, 638 (4th Cir. 2008)). Etienne argued that he did not have the opportunity to present any legal arguments in the DHS proceedings brought against him, and therefore the Court has jurisdiction to intervene in his removal order. Etienne v. Lynch, 2015 U.S. App. LEXIS 22873, at *5.

The Fourth Circuit noted that such a question has split the circuit courts. In Valdiviez-Hernandez v. Holder, the Fifth Circuit explained that a DHS Notice of Intent only allows the challenger of expedited removal to contest “factual deficiencies, not legal issues.” Valdiviez-Hernandez v. Holder, 739 F.3d 184, 187 (5th Cir. 2013). On the other hand, the Eleventh Circuit concluded that there is no jurisdiction when the individual subject to removal fails to challenge his or her classification as an “aggravated felon” during DHS removal proceedings. Malu v. United States Atty. Gen., 764 F.3d 1282, 1288 (11th Cir. 2014). The Fourth Circuit sided with the Fifth Circuit in finding the Court had jurisdiction to hear Etienne’s challenge without first protesting the decision to deem his conviction as an “aggravated felon” during DHS administrative proceedings. Etienne v. Lynch, 2015 U.S. App. LEXIS 22873, at *6. The Court explained that the expedited removal process allows a DHS officer, who may not be an attorney, to preside over the matter. Id. at *6. Additionally, the reply form supplied to Etienne only allowed him to “check boxes” informing DHS of his basis for challenging removal. Id. at *7-*9. These options did not offer a “specific checkbox for an alien to raise a legal challenge to his or her removal.” Id. at *9. Etienne was afforded no opportunity to challenge the legal basis for his removal based on the forms provided to him, thus it was appropriate for the court to hear his challenge for removal as an “aggravated felon.”

Although the Fourth Circuit ultimately agreed with DHS’s decision to classify Etienne’s 1996 conviction as an aggravated felony, the Court’s holding is pivotal to future expedited removal proceedings. Other Circuits may reasonably be anticipated to recognize such flaws in the DHS administrative proceedings – those subject to deportation may not be provided with an opportunity to raise legal questions pertaining to their removal order. Accordingly, courts may begin to find that jurisdiction lies in similar circumstances. It will be interesting to see if the Fourth Circuit’s reasoning in Etienne v. Lynch will persuade its sister courts on the issue of challenging the legal basis for deportation without first exhausting all administrative proceedings.

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