Ellouissaint Junior Herby Lamare v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELLOUISSAINT JUNIOR HERBY
LAMARE,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-71358
Agency No. A203-606-509
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 12, 2023 **
Pasadena, California
Before: MURGUIA, Chief Judge, and GRABER and BEA, Circuit Judges.
Concurrence by Chief Judge MURGUIA.
Ellouissaint Junior Herby Lamare, a citizen of Haiti, petitions this court to
review the expedited order of removal issued against him as a result of his placement
in expedited removal proceedings. In response to the court’s order requesting
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
DEC 15 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2
supplemental briefing on the effect of our decision in Mendoza-Linares v. Garland,
51 F.4th 1146 (9th Cir. 2022), petition for cert. filed, No. 23-606 (U.S. Dec. 1, 2023),
Lamare made clear that he “does not challenge the government’s right to order him
removed under the expedited removal statute” or “the legal or factual bases of his
removal order.” He challenges only the purported denial of his right to access the
asylum process under the Immigration and Nationality Act—issues that go to the
merits litigated in his expedited removal proceedings. Pursuant to § 242(a)(2)(A) of
the Immigration and Nationality Act, 8 U.S.C. § 1252(a)(2)(A), Congress has
stripped us of subject matter jurisdiction to review expedited removal proceedings
that involve aliens who, like Lamare, have not yet effected entry into the United
States. Mendoza-Linares, 51 F.4th at 1149.
PETITION DISMISSED.

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Lamare v. Garland, 20-71358
MURGUIA, Chief Circuit Judge, joined by GRABER, Circuit Judge, concurring:
I concur in the memorandum disposition. I write separately to note that I
continue to believe that Mendoza-Linares was wrongly decided for the reasons
articulated in the statement respecting the denial of rehearing en banc in that case.
Linares v. Garland, 71 F.4th 1201, 1203–06 (9th Cir. 2023).
FILED
DEC 15 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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