The Ninth Circuit has determined that a petitioner cannot bring a collateral attack on an expedited removal order, citing a gross miscarriage of justice, in a reinstatement proceeding. “We have held that this language precludes most collateral attacks on the validity of the removal order being reinstated, unless the petitioner can show that a ‘gross miscarriage of justice’ occurred during the earlier removal proceedings. But even that narrow sliver of jurisdiction is foreclosed when the underlying order is, as in this case, an expedited removal order.”
The court also affirmed the legality of the reasonable fear regulations. “The regulation the agency adopted in response achieves both of Congress’s objectives. It allows immigration officials ‘to quickly identify and resolve frivolous claims to protection,’ thereby recognizing Congress’s desire to ensure the swift removal of non-citizens subject to reinstatement. At the same time, a screening process addresses the United States’ treaty obligations by making it possible for those who do have a reasonable fear of persecution or torture to receive a hearing before an immigration judge at which they can establish their entitlement to appropriate relief.”
Finally, the court recognized that given the abbreviated nature of a reasonable fear interview, it is unreasonable to expect a petitioner to be able to submit significant corroborating documentary evidence. “Non-citizens in reinstatement proceedings who express a fear of returning to their home country typically appear for a reasonable fear interview within a short time of their apprehension by immigration authorities. Many, like Alvarado Herrera, are being held in detention facilities and do not have legal representation. As a result, they cannot realistically be expected to produce for the asylum officer’s review the kind of detailed country conditions evidence that would be introduced during a merits hearing before an immigration judge. Nor would such a demand be consistent with the purpose of a reasonable fear interview, which is simply to screen out frivolous claims for relief in as expeditious a manner as possible. Thus, if a non-citizen provides an otherwise credible account concerning his fear of torture, his own statements can supply adequate support for claims about country conditions, at least for purposes of satisfying the ten percent threshold necessary to pass a reasonable fear screening interview.”
The full text of Alvarado-Herrera v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/04/13/18-70191.pdf