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Valdiviez-Hernandez v. Holder

Facts

Valdiviez entered the United States unlawfully as a child and lived there until his removal. In 2011, he was investigated by ICE for using the identity of a deceased person and was found in possession of firearms. He pleaded guilty to being an illegal alien in possession of a firearm. In 2012, while still serving his sentence, DHS issued a Notice of Intent for expedited removal due to his aggravated felony conviction, which he did not contest. He was later removed to Mexico while his petition for review was pending.

Valdiviez, a native and citizen of Mexico, entered the United States unlawfully as a child in the 1960s and lived continuously in the United States until his removal. In February 2011, Immigration and Customs Enforcement (ICE) initiated an investigation into Valdiviez for 'fraudulently using the identity of a deceased person named Pablo Hernandez.' The investigation revealed that Validiviez had used Pablo Hernandez's social security number, and obtained property, bank accounts, driver's licenses, and vehicles using the stolen identity. While searching Valdiviez's home and vehicle pursuant to a warrant, ICE agents found thirteen firearms. On November 18, 2011, Valdiviez pleaded guilty to and was convicted of one count of being an illegal alien in possession of a firearm in violation of 18 U.S.C. 922(g)(5).

Issue

Whether Valdiviez was subject to expedited removal under 8 U.S.C. 1228(b) despite not being admitted for permanent residence and whether he was eligible for any discretionary relief from removal.

Valdiviez challenges two aspects of the FARO. First, Valdiviez argues that he is not subject to the expedited removal process because he is not an alien as described in the removal statute. Specifically, Valdiviez asserts that the expedited removal process applies only to aliens who have been 'admitted' to the United States and have committed an aggravated felony, and does not apply to aliens who entered the United States unlawfully.

Rule

The expedited removal process under 8 U.S.C. 1228(b) applies to all aliens convicted of an aggravated felony, regardless of their admission status, and such aliens are statutorily ineligible for any discretionary relief.

INA 238(b), 8 U.S.C. 1228(b), authorizes the Attorney General to expedite removal of an alien who is not a lawful permanent resident and who is deportable for committing an aggravated felony.

Analysis

The court determined that Valdiviez was properly subject to expedited removal because he was an alien convicted of an aggravated felony. The court rejected his argument that the expedited removal process only applies to aliens who have been admitted to the United States, citing other circuit courts that have uniformly held that the expedited removal process applies to all aliens not lawfully admitted for permanent residence who have committed aggravated felonies.

The relevant statutes and corresponding regulations therefore did not provide Valdiviez with an avenue to challenge the legal conclusion that he does not meet the definition of an alien subject to expedited removal. As such, Valdiviez did not fail to exhaust his administrative remedies.

Conclusion

The court affirmed the decision of the lower court, denying Valdiviez's petition for review and his motion for a stay of removal.

The court affirmed the decision of the lower court, denying Valdiviez's petition for review and his motion for a stay of removal.

Who won?

The government prevailed in the case because the court upheld the expedited removal process and found that Valdiviez was ineligible for discretionary relief due to his aggravated felony conviction.

The government prevailed in the case because the court upheld the expedited removal process and found that Valdiviez was ineligible for discretionary relief due to his aggravated felony conviction.

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