Ernest A. Odei and Spirit of Grace Outreach, Plaintiffs-Appellants,
United States Department of Homeland Security, et al., Defendants-Appellees.
April 12, 2019
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 17-cv-06019 -
Andrea R. Wood, Judge.
Flaum, Easterbrook, and Sykes, Circuit Judges.
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.
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.
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.
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.
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. The district judge dismissed
the suit based on the INA's jurisdiction-stripping
provision. This appeal followed.
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.
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.
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 ...