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Smith v. United States Customs and Border Protection

United States Court of Appeals, Ninth Circuit

January 9, 2014

John R.G. SMITH, Petitioner-Appellant,
v.
UNITED STATES CUSTOMS AND BORDER PROTECTION; U.S. Department of Homeland Security; Alan Bersin, Commissioner of U.S. Customs and Border Protection; Michele James, Seattle Field Office Director U.S. Customs and Border Protection; Janet A. Napolitano, Secretary of Department of Homeland Security, Respondents-Appellees.

Argued and Submitted Aug. 26, 2013.

Page 1017

Robert Pauw (argued), Gibbs Houston Pauw, Seattle, Washington; Lee Gelernt (argued) and Dror Ladin, American Civil Liberties Union Immigrants' Rights Project, New York, New York, for Plaintiff-Appellant.

Erez Reuveni (argued), Trial Attorney, United States Department of Justice, Office of Immigration Litigation; Tony West, Assistant Attorney General, Civil Division; William H. Orrick, III, Deputy Assistant Attorney General; David J. Kline, Director, Office of Immigration Litigation, District Court Section, Washington, D.C., for Respondents-Appellees.

Greg Boos, Cascadia Cross-Border Law, Bellingham, Washington, for Amici Curiae Bellingham/Whatcom Chamber of Commerce, British Columbia Chamber of Commerce, Northwest Economic Council, and Pacific Corridor Enterprise Council.

Appeal from the United States District Court for the Western District of Washington, James L. Robart, District Judge, Presiding. D.C. No. 2:10-cv-02036-JLR.

Before: MICHAEL DALY HAWKINS, M. MARGARET McKEOWN, and RICHARD R. CLIFTON, Circuit Judges.

Page 1018

OPINION

McKEOWN, Circuit Judge:

This case asks us to consider whether a Canadian arriving at the border and subjected to expedited removal but never detained is entitled to habeas relief, under either the traditional habeas structure, 28 U.S.C. § 2241, or the more limited regime applicable to expedited removal orders, 8 U.S.C. § 1252(e)(2). John Smith was ordered removed when customs officials determined that he planned to work in the United States without documentation. Smith petitioned the court in habeas, contending that, as a Canadian, he was exempt from documentary requirements, and that customs officials therefore exceeded their statutory authority in subjecting him to expedited removal without a hearing. Because Smith was never in custody, we lack jurisdiction to consider his claims under the traditional habeas statute, 28 U.S.C. § 2241. We agree with Smith, however, that we have jurisdiction under the limited review provisions of 8 U.S.C. § 1252(e)(2) to consider whether Smith was " ordered removed" under the expedited removal statute. We nevertheless hold that Smith is not entitled to the relief he seeks, because as applied to the narrow facts of Smith's case, § 1252(e)(2) does not permit us to consider any further collateral challenge.

BACKGROUND

On October 12, 2009, John Smith, a citizen of Canada, drove his motor home to the Port of Entry at Oroville, Washington, and sought entry to the United States. Smith stated, when asked, that he was traveling with $8,000, and that he had no items to declare. He was referred to secondary inspection, where he filled out a form declaring $8,630 in cash. When officers from United States Customs and Border Protection (" CBP" ) searched Smith's motor home, they found nine cartons of cigarettes, and confronted Smith, who told them that he had an additional $20,000 in a safe under the bed. The officers found $25,000 in the safe, in cash and traveler's checks, together with flyers advertising Smith's work as a photographer. The flyers, some headlined " Photographer/Cameraman Available," advertised Smith's availability from October 2009 to April 2010 from " Tucson to Ph[oe]nix & all points between," his " flexible rates & schedule," and his expertise photographing " skydiving, motorcycle events, aircraft, and nudes." The flyers listed Smith's name and his website address, www. skydyv. com.

Believing that Smith intended to operate a business within the United States, a CBP officer took a sworn statement from him. Smith conceded that he had lied during the primary inspection process, and that he had purposefully chosen not to report the currency he was carrying. Smith stated that he wished to enter the United States, destination Skydive, Arizona, to " skydive[,] take pictures, video and have fun." He claimed that he was " not paid to do this service," and denied that he was advertising to take pictures for commercial purposes while in the United States. In the same interview, Smith conceded that he was compensated with jump tickets and the " occasional glass of scotch," and that he sold photographs via his website. Smith said that he had been filming jumps in the United States since 2000, and did " roughly 150 jumps" over the course of a trip. When asked whether he considered " taking pictures of people in the [U.S.] that [he] may sell later [to be] a form of work," Smith conceded that he did.

The CBP determined that Smith was seeking to enter the United States to work as a " Photographer and/or Cameraman for [his] ...


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