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6 UNITED STATES DISTRICT COURT

7 DISTRICT OF NEVADA

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9 EXTIWUEN OROZCO-MONTOYA, Case No. 2:21-cv-01730-RFB-EJY

10 Petitioner, ORDER v. 11

12 MERRICK GARLAND, et al.,

13 Respondents.

14 15 Petitioner Extiwuen Orozco-Montoya filed a pro se habeas corpus petition pursuant to 28

(ECF No. 1). He states that he was apprehended unlawfully entering the United 17 States, that he sought asylum, and that the Department of Homeland Security (DHS) violated his 18 due process rights in making its credible fear determination. As discussed below, the petition is 19 dismissed for failure to state a claim for which relief may be granted. 20 Individuals who are apprehended unlawfully entering the United States at the border are 21 issued an expedited removal order and summarily deported.

(b)(1)(A)(ii). 22 Applicants can avoid expedited removal by claiming asylum. If an applicant “indicates either an 23 intention to apply for asylum” or “a fear of persecution,” the immigration officer refers the alien 24 for an interview by an asylum officer. §§ 1225(b)(1)(A)(i)–(ii). The asylum officer conducts the 25 screening interview to determine whether the applicant has a “credible fear of persecution.” § 26 1225(b)(1)(B)(v). The applicant need not show that he or she is in fact eligible for asylum—a 27 “credible fear” equates to only a “significant possibility” that the alien would be eligible. Id. Thus, 1 while eligibility ultimately requires a “well-founded fear of persecution on account of,” among 2 other things, “race” or “political opinion,” §§ 1101(a)(42)(A), 1158(b)(1)(A), all that an alien must 3 show to avoid expedited removal is a “credible fear.” 4 If the asylum officer finds an applicant's asserted fear to be credible, the applicant will 5 receive “full consideration” of his asylum claim in a standard removal hearing.

208.30(f); see

(b)(1)(B)(ii). If the asylum officer finds that the applicant does not 7 have a credible fear, a supervisor will review the asylum officer’s determination.

208.30(e)(8). If the supervisor agrees with it, the applicant may appeal to an immigration judge, 9 who can take further evidence and makes a de novo determination.” §§ 1003.42(c), (d)(1); see 8

(b)(1)(B)(iii)(III). 11 Orozco is a 21-year-old Colombian citizen who entered the United States in either May or 12 June 2021 without inspection and claimed a fear of removal to Colombia as a farmer and human 13 rights defender who resists paramilitary intrusion (ECF No. 1, p. 4). An asylum officer interviewed 14 him on July 10, 2021 and concluded that Orozco did not establish a credible fear of persecution or 15 a significant possibility for eligibility to withhold or defer removal under the Convention Against 16 Torture. Orozco appealed to an Immigration Judge (IJ) who took testimony and affirmed the DHS 17 negative fear determination (ECF No. 1-2). 18 Orozco argues that he is entitled to habeas relief under

because DHS 19 failed to comply with regulatory and binding precedent in violation of his federal due process 20 rights. Though habeas relief typically means a release from custody, Orozco seeks “a new, 21 meaningful opportunity to apply for asylum and other relief from removal” (ECF No. 1, p. 22). 22 The United States Supreme Court recently considered whether federal courts may review 23 the determination that an alien lacks a credible fear of persecution. Department of Homeland 24 Security v. Thuraissigiam,

(2020). A provision of the Illegal Immigration Reform 25 and Immigrant Responsibility Act (IIRIRA), § 1252(e)(2), limits the review that an alien in 26 expedited removal may obtain via a petition for a writ of habeas corpus. “In particular, courts may 27 not review ‘the determination’ that an alien lacks a credible fear of persecution. § 1252(a)(2)(A)Gi); see also §§ 1252(a)(2)(A)(i1), (iv).” Jd. at 1966. The respondent in Thuraissigiam argued that IIRIRA violated his right to due process by precluding judicial review of his allegedly flawed credible-fear proceeding. Jd. at 1981. The Court concluded that the 4|| proscription of judicial review of the credible fear determination violates neither the Suspension || Clause nor the Due Process Clause. /d. at 1983. The Court explained: 6 an alien in respondent's [as well as Orozco’s] position has only those rights 7 regarding admission that Congress has provided by statute. In respondent's case, Congress provided the right to a “determin[ation]” whether he had “a significant 8 possibility” of “establish[ing] eligibility for asylum,” and he was given that right. §§ 1225(b)(1)(B)(i1), (v). Because the Due Process Clause provides nothing more, 9 it does not require review of that determination or how it was made. As applied 10 here, therefore, § 1252(e)(2) does not violate due process. Id. at 1983. 11 12 This court is, therefore, precluded from entertaining a habeas corpus petition that seeks 13]! review of the credible-fear determination. Accordingly, Orozco’s petition is dismissed for failure to state a claim for which relief may be granted. 15 IT IS THEREFORE ORDERED that the petition is DISMISSED for failure to state a claim for which relief may be granted. 17 IT IS FURTHER ORDERED that a certificate of appealability is DENIED. 18 IT IS FURTHER ORDERED that the Clerk shall enter judgment accordingly and close 49|| this case. 20 ?1 DATED: 9 August 2022. 22 “ 23 RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE 24 25 26 27 28