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Odei v. United States Department of Homeland Security

United States Court of Appeals, Seventh Circuit

September 10, 2019

Ernest A. Odei and Spirit of Grace Outreach, Plaintiffs-Appellants,
v.
United States Department of Homeland Security, et al., Defendants-Appellees.

          Argued April 12, 2019

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 17-cv-06019 - Andrea R. Wood, Judge.

          Before Flaum, Easterbrook, and Sykes, Circuit Judges.

          SYKES, CIRCUIT JUDGE.

         Ernest Odei traveled from his native Ghana to the United States in 2017 to meet with academic advisors and to perform missionary work. When he arrived in Chicago, border patrol agents barred his entry because he did not have the proper visa. After a short detention, immigration authorities gave Odei the option to withdraw his application for admission and return to Ghana. He chose to do so, but several months later he brought this lawsuit challenging the inadmissibility determination.

         The district court dismissed the case for lack of jurisdiction under 8 U.S.C. § 1252(a)(2)(A), which bars judicial review of any "order of removal pursuant to" the expedited removal procedure in 8 U.S.C. § 1225(b)(1)(A)(i). Odei argues that the jurisdictional bar does not apply because it refers only to "order[s] of removal" and there was no order of removal here because he withdrew his application for admission. Under the relevant statutory definitions, however, an "order of removal" refers to both an order to remove as well as an order that an alien is removable. Odei is challenging the latter, so the jurisdictional bar applies.

         I. Background

         Odei is a pastor of a Christian church in Ghana and a founding board member of the Spirit of Grace Outreach, a nonprofit religious group in the United States. He is also a Ph.D. candidate in an online educational program sponsored by a Christian university in Tennessee. In 2017 Spirit of Grace invited him to visit the United States to participate in its religious activities. Odei also planned to speak at churches and youth groups, perform missionary work, and meet with his academic advisors at the university. Before his trip Odei applied for a B-1/B-2 visa, which the U.S. Consulate in Ghana approved.

         When Odei arrived at Chicago's O'Hare International Airport, agents of the U.S. Customs and Border Protection agency questioned him about his trip. They eventually determined that his visa was invalid for his intended missionary and academic purposes, which meant he was inadmissible under 8 U.S.C. § 1182(a)(7). They found him inadmissible and canceled the visa. They did not immediately remove him, however, because he answered "yes" when asked if he feared returning to Ghana. They transferred him to the custody of Immigration and Customs Enforcement, and he was held in the McHenry County Jail. A week later Odei dropped his asylum claim. That would normally require immediate removal under § 1225(b)(1), but the Department of Homeland Security gave Odei the opportunity to withdraw his application for admission and return to Ghana immediately. He did just that.

         This lawsuit came a few months later. Odei and Spirit of Grace sued the Department of Homeland Security and Customs and Border Protection challenging the decision not to admit him. He raised claims under the Immigration and Nationality Act ("INA"), the Administrative Procedure Act, and the Religious Freedom Restoration Act.[1] The district judge dismissed the suit based on the INA's jurisdiction-stripping provision. This appeal followed.

         II. Discussion

         We start with a brief overview of the statutory scheme. When an immigration officer concludes that an immigrant lacks a valid visa and thus is inadmissible under § 1182(a)(7), the officer "shall order the alien removed from the United States without further hearing or review." § 1225(b)(1)(A)(i). This is commonly called "expedited removal, ” but there are two exceptions. The officer may not order immediate removal if "the alien indicates either an intention to apply for asylum ... or a fear of persecution." Id. And the officer need not order removal if the alien withdraws his application: "An alien applying for admission may, in the discretion of the Attorney General and at any time, be permitted to withdraw the application for admission and depart immediately from the United States." 8 U.S.C. § 1225(a)(4). Because Odei initially claimed that he feared persecution but then withdrew his application for admission and left the country voluntarily, there was no expedited removal.

         As relevant here, the INA provides that "no court shall have jurisdiction to review ... any individual determination or to entertain any other cause or claim arising from or relating to the implementation or operation of an order of removal pursuant to section 1225(b)(1)." § 1252(a)(2)(A)(i); see also Khan v. Holder, 608 F.3d 325, 329-30 (7th Cir. 2010) (explaining the operation of the jurisdictional bar). Odei argues that there was no "order of removal" because he withdrew his application and voluntarily left the county, so § 1252(a)(2)(A) does not apply.

         This argument misreads the INA. The term "order of removal" is synonymous with the term "order of deportation." Mejia Galindo v. Sessions, 897 F.3d 894, 897 (7th Cir. 2018); Guevara v. Gonzales,472 F.3d 972, 796 (7th Cir. 2007). The term "order of deportation" refers not only to a decision "ordering deportation" but also to an order "concluding that the alien ...


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