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De Soto v. Lynch

United States Court of Appeals, Ninth Circuit

August 30, 2016

Francisca Morales de Soto, Petitioner,
v.
Loretta E. Lynch, Attorney General, Respondent.

          Argued and Submitted March 9, 2016 Pasadena, California

          Amended August 30, 2016

         On Petition for Review of an Order of the Department of Homeland Security Agency No. A086-968-871

          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.

          Before: Richard R. Clifton and Sandra S. Ikuta, Circuit Judges and Frederic Block, [*] Senior District Judge.

         ORDER AND AMENDED OPINION

         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.

         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."

         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 ...


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