Garcia-Villeda v. Mukasey, No. 07-0283 (2d Cir. 2008)

Annotate this Case

Download PDF

07-0283-ag Garcia-Villeda v. Mukasey 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ------------August Term 2007 Argued: March 25, 2008 Decided: July 8, 2008 Docket No. 07-0283-ag --------------------------------------------------------X Horacio H. Garcia-Villeda, Petitioner, - against Michael B. Mukasey, Attorney General of the United States, Respondent. --------------------------------------------------------X Before: JACOBS, Chief Judge, and FEINBERG and HALL, Circuit Judges. Petitioner Horacio H. Garcia-Villeda seeks review of a decision of the U.S. Immigration and Customs Enforcement reinstating a prior order of deportation for illegal entry. We deny petitioner s request for vacatur of the reinstatement order and hold that (1) 8 C.F.R. § 241.8 constitutes a valid interpretation of the reinstatement of removal statute, 8 U.S.C. § 1231(a)(5); (2) petitioner failed to show prejudice resulting from the reinstatement of his prior deportation order; (3) the reinstatement of removal statute precludes any collateral review of the underlying deportation proceeding; and (4) reinstatement of the prior deportation order without prior adjudication of petitioner s pending petitions for Waiver of Grounds of Excludability and for Permission to Reapply for Admission was proper, because, as an illegal reentrant, petitioner was inegilible Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Michael B. Mukasey is substituted for Alberto Gonzales as Respondent. 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 for any discretionary relief under the immigration laws and could only apply for permission to reapply for admission after having resided outside the U.S. for a minimum of ten years. MICHAEL P. DiRAIMONDO, DiRaimondo & Masi, LLP, Melville, NY, for Petitioner. SCOTT REMPELL, Trial Attorney, Office of Immigration Litigation, JEFFREY S. BUCHOLTZ, Acting Assistant Attorney General, Civil Division, LINDA S. WERNERY, Assistant Director, U.S. Department of Justice, Washington, DC, for Respondent. FEINBERG, Circuit Judge: 15 Petitioner Horacio H. Garcia-Villeda seeks review of a December 16 28, 17 Immigration 18 order of deportation for illegal entry, entered against petitioner in 19 August 1996. The issues before us are whether elimination of the 20 requirement of a hearing before an immigration judge, pursuant to 8 21 C.F.R. 22 removal statute, 8 U.S.C. § 1231(a)(5); whether the reinstatement of 23 removal procedure set forth in 8 C.F.R. § 241.8, both as applied in 24 this case and on its face, comports with the Due Process Clause of 25 the Fifth Amendment; whether the original deportation order could be 26 constitutionally 27 violations in the original proceeding; and whether the ICE properly 28 reinstated 29 adjudicating petitioner s pending applications for Waiver of Grounds 30 of Excludability and for Permission to Reapply for Admission. 2006 § order and 241.8 the of the Customs (2001), Department Enforcement is reinstated underlying of ( ICE ), consistent despite Homeland with 31 2 reinstating the allegations deportation Security order ( DHS ), a prior reinstatement of due without of process first 1 I. 2 Petitioner, a native and citizen of Honduras, was apprehended 3 for entering the United States (hereafter U.S. ) without inspection 4 in August 1996. On August 27, 1996, he was ordered deported by an 5 immigration 6 Immigration Appeals ( BIA ) or contest in a federal court. A warrant 7 for removal was issued, and petitioner was deported on September 5, 8 1996. BACKGROUND judge, a ruling he did not appeal to the Board of 9 Petitioner reentered the U.S. illegally in May 1997. In June 10 1998, he married Martha Vienna Paz, a U.S. citizen, with whom he now 11 has two children. 12 On December 28, 2006, petitioner appeared for an interview 13 before an ICE officer to discuss his immigration status. During the 14 interview, petitioner admitted both his illegal reentry into the U.S. 15 and his earlier deportation in September 1996. On the same day, after 16 the 17 identity, the Acting Supervisory Deportation Officer reinstated the 18 prior deportation order. Since then, petitioner has been detained in 19 Elizabeth, New Jersey. interviewing officer verified petitioner s statements and his 20 In January 2007, petitioner was interviewed to determine whether 21 he had a reasonable fear of persecution in his country of origin, 22 which would entitle him to withholding of removal and protection 23 under the Convention Against Torture. After a hearing, in March 2007, 3 1 an immigration judge ruled against petitioner. The BIA affirmed in 2 July 2007, and petitioner did not seek review of the BIA s decision. 3 4 Thereafter, petitioner filed a timely petition for review of the December 28, 2006 reinstatement of removal order. 5 6 II. 7 In 1996, as part of a sweeping overhaul of the immigration laws, DISCUSSION 8 Congress 9 Responsibility enacted the Act, Illegal Pub. L. Immigration No. 104-208, Reform div. C, and 110 Immigrant Stat. 3009 10 ( IIRIRA ). The IIRIRA, among other things, repealed § 242(f) of the 11 Immigration and Nationality Act ( INA ), 8 U.S.C. § 1252(f) (repealed 12 1996), and adopted INA § 241(a)(5), 8 U.S.C. § 1231(a)(5) (hereafter 13 INA § 241(a)(5) or the reinstatement of removal statute ). 1 This 14 section became effective on April 1, 1997. 15 In 1997, the Attorney General aligned the implementing 16 regulations with the new statutory language, by replacing 8 C.F.R. § 17 242.23(b) (repealed 1997) - which required a reinstatement hearing 18 before an immigration judge - with 8 C.F.R. § 241.8, which changes 1 INA § 241(a)(5), 8 U.S.C. § 1231(a)(5) provides: If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry. 4 1 the hearing requirement. 2 Under 8 C.F.R. § 241.8, once the immigration 2 officer has established that the alien is indeed an illegal reentrant 3 subject to the reinstatement of removal statute, the officer must 4 order 5 deportation, or removal in accordance with section 241(a)(5) of the 6 [INA]. 8 C.F.R. § 241.8(c). 7 the alien Petitioner removed argues 8 construction of the 9 mandate INA § of under that statute, 240, 8 the the previous regulation because U.S.C. it § order is an contravenes 1229a(a)(1), of exclusion, impermissible the explicit that removal 10 proceedings be conducted before an immigration judge. Petitioner also 11 challenges the regulation on constitutional grounds, alleging that, 12 both on its face and as applied in his case, it violates the Due 13 Process Clause of the Fifth Amendment. In addition, petitioner claims 14 that the underlying deportation order itself deprived him of due 15 process 16 petitioner contends that, even if the regulation is valid, the ICE 17 was and precluded 2 thus from was not subject reinstating the to reinstatement. earlier order Finally, without 8 C.F.R. § 241.8 states in pertinent part: (a) Applicability. An alien who illegally reenters the United States after having been removed, or having departed voluntarily, while under an order of exclusion, deportation, or removal shall be removed from the United States by reinstating the prior order. The alien has no right to a hearing before an immigration judge in such circumstances. In establishing whether an alien is subject to this section, the immigration officer shall determine the following: (1) Whether the alien has been subject to a prior order of removal. . . . (2) The identity of the alien, i.e., whether the alien is in fact an alien who was previously removed . . . . [and] (3) Whether the alien unlawfully reentered the United States. 5 first 1 adjudicating 2 Grounds of Excludability and for Permission to Reapply for Admission, 3 which, 4 argument in turn. he petitioner s believes, then-pending would have been petitions for successful. We Waiver address of each 5 6 A. Challenge to the Validity of 8 C.F.R. § 241.8. 7 Section 240 of the INA, entitled Removal proceedings, requires 8 that [a]n immigration judge shall conduct proceedings for deciding 9 the 10 inadmissibility or deportability of an alien. 8 U.S.C. § 1229a(a)(1). The section further provides: 11 12 13 14 15 16 17 8 U.S.C. § 1229a(a)(3) (emphasis added). Petitioner claims that this 18 language 19 requirement 20 proceedings - including reinstatement of prior deportation orders - 21 that result in removal of an alien from the U.S. Petitioner argues 22 that, 23 proceedings from the hearing requirement, and since a hearing was 24 provided to aliens subject to reinstatement for over four decades 25 under 26 procedure prescribed 27 procedure for Unless otherwise specified in this chapter, a proceeding under this section shall be the sole and exclusive procedure for determining whether an alien may be admitted to the United States or, if the alien has been so admitted, removed from the United States. clearly since the of expresses a hearing Congress prior has before not statute by congressional determining the § 240 whether 6 exempted implementing is an to immigration specifically and INA an intent the judge to the all reinstatement regulations, sole earlier extend and the exclusive deportation order 1 should 2 regulation that confers upon immigration officers, not judges, the 3 authority to reinstate without a hearing a prior deportation order 4 against an illegal reentrant is in direct conflict with INA § 240 and 5 thus invalid. be reinstated. In petitioner s view, the implementing 6 To assess the validity of the regulation at issue, we apply the 7 two-prong test enunciated in Chevron, U.S.A., Inc. v. Natural Res. 8 Def. Council, Inc., 467 U.S. 837, 842-43 (1984). Under the first 9 prong of Chevron, we determine whether Congress has directly spoken 10 to the precise question at issue, id. at 842, i.e., here, whether a 11 prior removal order may be reinstated without a full hearing before 12 an immigration judge. If the intent of Congress is clear, that is 13 the end of the matter . . .. Id. However, if the statute is found to 14 be ambiguous, the question for us under the second prong is whether 15 the agency s answer is based on a permissible construction of the 16 statute. Id. at 843. 17 The validity of the regulation implementing the reinstatement of 18 removal statute is a matter of first impression in this circuit, but 19 we are not without guidance on the question. Every other circuit that 20 has 21 interpretation of the INA. See Lorenzo v. Mukasey, 508 F.3d 1278, 22 1283-84 (10th Cir. 2007); Morales-Izquierdo v. Gonzales, 486 F.3d 23 484, 489-95 (9th Cir. 2007) (en banc); De Sandoval v. U.S. Att y 24 Gen., 440 F.3d 1276, 1280-83 (11th Cir. 2006); Ochoa-Carrillo v. considered the issue has upheld 7 the regulation as a valid 1 Gonzales, 437 F.3d 842, 846 (8th Cir. 2006); Lattab v. Ashcroft, 384 2 F.3d 8, 17-20 (1st Cir. 2004); see also Tilley v. Chertoff, 144 F. 3 App x 536, 539-40 (6th Cir. Aug. 15, 2005) (unpublished). 4 (1) Chevron Step One. Petitioner correctly points out that INA § 5 241(a)(5) does 6 Attorney General 7 However, petitioner errs in assuming that, because Congress did not 8 explicitly specify those procedures, it intended that reinstatement 9 proceedings be governed by INA § 240. not specify in the procedures reinstating an to be earlier followed by deportation the order. 10 Petitioner s primary reliance on the direction of INA § 240 that 11 a full-fledged hearing before an immigration judge be the sole and 12 exclusive 13 deported from the U.S., 8 U.S.C. § 1229a(a)(3), 3 is misplaced. This 14 provision 15 concern only aliens already admitted to the U.S. Petitioner has twice 16 entered the U.S. illegally, but has never been admitted to this 17 country. In any event, such a hearing is not the sole and exclusive 18 procedure for 19 otherwise specified. 20 specify otherwise: in INA § 241(a)(5), it authorized the Attorney 21 General to reinstate prior removal orders based on the simple finding 22 that an alien entered the U.S. illegally after having been deported. 4 procedure requires for a determining formal removability For hearing whether in an removal determinations, reinstatement, The language is quoted in full supra at p. 6. 4 See supra note 1. will proceedings when Congress 3 8 alien Congress did in be that has fact 1 In addition, the placement of the reinstatement of removal 2 statute in INA § 241, under the title Detention and removal of 3 aliens ordered removed, separate from INA § 240, which is entitled 4 Removal proceedings, indicates a congressional intention to treat 5 reinstatement 6 determinations 7 Alexander v. Sandoval, 532 U.S. 275, 288-91 (2001)). As the Ninth 8 Circuit sitting en banc put it, it is unlikely that Congress would 9 have bothered determinations of differently removability. with the Lattab, detailed from 384 provisions first-instance F.3d of at INA § 18 (citing 241 if it 10 intended to give an alien subject to reinstatement of a prior removal 11 order exactly the same rights and procedural protections as an alien 12 facing removal for the first time. Morales-Izquierdo, 486 F.3d at 13 491. It is, accordingly, fair for us to infer that the reinstatement 14 of removal statute was introduced as an alternative to the otherwise 15 applicable 16 determinations of removability. 17 procedure mandated by INA § 240 for first instance Our finding that INA § 240 s requirement of a comprehensive 18 hearing 19 reentrants is consistent with the legislative history of the portion 20 of the IIRIRA dealing with reinstatement of a removal order. That 21 history 22 defects of the pre-IIRIRA procedures for reinstatement of removal 23 orders and make the removal of illegal reentrants more expeditious. 24 Lattab, 384 F.3d at 20; see also H.R. Rep. No. 104-469(I), at 13 before evinces an immigration unequivocal judge does congressional 9 not apply intent to to illegal rectify the 1 (1996) (explaining that if [a]liens who are ordered removed . . . 2 seek reentry they are subject to immediate removal under the prior 3 order 4 procedures 5 expressing frustration because the [r]emoval of aliens who enter the 6 United States illegally, even those who are ordered deported after a 7 full due process hearing, is an all-too-rare event ). Congress was 8 concerned with the inefficiencies of the previous scheme and sought 9 to (emphasis added)); then modernize it in by id. effect at as narrowing 107 (characterizing cumbersome the range of and the removal duplicative defenses and available to 10 recidivist illegal aliens and, most importantly, by eliminating any 11 duplication 12 clear that Congress enacted INA § 241(a)(5) to effect a substantive 13 change in the prior regime. See 62 Fed. Reg. 10312, 10326 (Mar. 6, 14 1997). Quite simply, Congress replaced [the] reinstatement provision 15 with 16 Gonzales, 548 U.S. 30, 34 (2006). 17 one We between that cannot removal toed a and harder nullify the reinstatement line . . unambiguous .. proceedings. It Fernandez-Vargas intent of Congress is v. to 18 streamline the reinstatement process and distinguish it from removal 19 proceedings 20 construing a statute as containing superfluous or meaningless words 21 or giving it a construction that would render it ineffective. United 22 States v. Blasius, 397 F.2d 203, 207 n.9 (2d Cir. 1968). Petitioner 23 urges us to do just that, i.e., render INA § 241(a)(5) superfluous, 24 by under reinventing INA § 240. reinstatement of There prior 10 is a removal presumption orders as against a sub- 1 category of removal proceedings subject to the hearing requirement 2 under INA § 240. The only way to bestow meaning on both provisions is 3 to conclude that Congress intended to exempt reinstatement of removal 4 from the procedural requirements of INA § 240. 5 Concluding that INA § 240 is inapplicable here does not end our 6 inquiry 7 question at issue, Chevron, 467 U.S. at 842, i.e., whether Congress 8 explicitly empowered the executive branch to design as summary a 9 procedure for reinstatement as the one set forth in 8 C.F.R. § 241.8. 10 Although the legislative history and the reinstatement of removal 11 statute itself clearly reflect general congressional intent that a 12 simplified procedure be employed for the swift removal of illegal 13 reentrants, the statutory scheme neither explicates nor endorses any 14 particular procedures for reinstating removal orders. Lattab, 384 15 F.3d 16 address procedural questions with either clarity or specificity ). 17 Like most of the circuits that have decided the issue before us, we 18 conclude 19 regarding the procedures applicable to aliens who reenter the United 20 States in violation of an existing removal order. De Sandoval, 440 21 F.3d at 1281; see also Lorenzo, 508 F.3d at 1284; Lattab, 384 F.3d at 22 19. We, therefore, proceed with the second step of our analysis. 23 24 at (2) of 19 whether (also that noting INA Chevron Congress §§ Step has that 240 Two. and In the directly spoken legislative 241(a)(5) examining are the to the history at best precise does not ambiguous permissibility of 8 C.F.R. § 241.8, we are heedful of the Supreme Court s direction that 11 1 the reasonable construction of a statutory provision be affirmed, 2 even if it is not the one the court would have reached if the 3 question initially had arisen in a judicial proceeding. Chevron, 467 4 U.S. at 843 n.11. 5 We would surely be hard-pressed to conclude that the Attorney 6 General s implementation of the reinstatement of removal statute is 7 impermissible. 8 statute itself assumes the use of summary, rather than judicial, 9 proceedings. Lorenzo, 10 reinstatement proceeding 11 reentered the United States illegally after having been removed. 8 12 U.S.C. § 1231(a)(5). The summary procedure set forth in 8 C.F.R. § 13 241.8 is, therefore, quite appropriate when the only issues to be 14 determined are those establishing the agency s right to proceed under 15 [INA] § 241(a)(5) - the alien s identity, the existence of a prior 16 removal 17 Alvarez-Portillo v. Ashcroft, 280 F.3d 858, 867 (8th Cir. 2002). This 18 bare 19 enforcement 20 immigration judge. Morales-Izquierdo, 486 F.3d at 491. First, order, and investigation action the text 508 is whether of F.3d the at limited the reinstatement 1283. to alien whether has can be performed by an immigration The like inquiry the unlawfully any officer, of other in removal in alien a has reentered. ministerial lieu of an 21 Furthermore, as we discuss below in parts II.C and II.D of the 22 opinion, illegal reentrants are now categorically declared ineligible 23 for 24 collateral review of the reinstated order. This is a significant any relief from removal and 12 are barred from seeking any 1 change from the previous regime and further simplifies the inquiry. 2 Compare 3 1996). [T]he elimination of any exogenous defense to reinstatement 4 significantly narrows the range of issues to be adjudicated, thereby 5 limiting the value of additional procedures. Lattab, 384 F.3d at 20. 8 U.S.C. § 1231(a)(5) with 8 U.S.C. § 1252(f) (repealed 6 The regulation is, therefore, entirely consistent, id, with 7 the IIRIRA s stated purpose to enable . . . the prompt exclusion or 8 removal of those who are not . . . entitled to admission. See H.R. 9 Rep. No. 104-469(I), at 111. Deference to the Attorney General s 10 interpretation is even more imperative in the immigration context 11 where officials exercise especially sensitive political functions 12 that 13 Aguirre, 526 U.S. 415, 425 (1999) (quoting INS v. Abudu, 485 U.S. 94, 14 110 (1988)). We, like our sister circuits, 5 have little difficulty 15 in deferring to the government s reasonable interpretation of INA § 16 241(a)(5). Lattab, 384 F.3d at 20. implicate questions of foreign relations. INS v. Aguirre- 17 Invoking the doctrine of constitutional avoidance, petitioner 18 invites us to find the regulation an impermissible interpretation of 19 the statute. The doctrine requires that when given a choice between 20 two plausible statutory constructions, we avoid adopting the one 5 With the exception of the Ninth Circuit, all other circuits that have addressed the validity of 8 C.F.R. § 241.8 have resolved the issue on the second step of Chevron, upholding the regulation as a permissible construction of the reinstatement of removal statute. See Lorenzo, 508 F.3d at 1283; De Sandoval, 440 F.3d at 1283; Ochoa-Carillo, 437 F.3d at 846; Lattab, 384 F.3d at 20. The Sixth Circuit also resolved the issue on the first step of Chevron in an unpublished summary order. See Tilley, 144 F. App x at 540. 13 1 that would raise a multitude of constitutional problems. Clark v. 2 Martinez, 543 U.S. 371, 380-81 (2005). Nevertheless, the doctrine is 3 unavailing to petitioner, because, as the Ninth Circuit held, once an 4 ambiguous statute has been interpreted by the agency in charge of its 5 implementation, we lack the authority to re-construe the statute, 6 even to avoid potential constitutional problems. Morales-Izquierdo, 7 486 F.3d at 493. Our role here is confined to deciding whether the 8 agency s interpretation reflects a plausible reading of the statutory 9 text. Id. We hold that it does. 10 B. Due Process Challenges. 11 Petitioner s constitutional challenges to the reinstatement 12 procedure, as laid down in 8 C.F.R. § 241.8 and as applied in his 13 case, likewise are without merit. Parties claiming denial of due 14 process in immigration cases must, in order to prevail, allege some 15 cognizable prejudice fairly attributable to the challenged process. 16 Lattab, 384 F.3d at 20; see also Zerrei v. Gonzales, 471 F.3d 342, 17 347 (2d Cir. 2006) (per curiam). 18 Petitioner fails to demonstrate how the alleged shortcomings 19 have prejudiced the outcome of his case. He has admitted before the 20 ICE 21 reinstatement under INA § 241(a)(5), i.e., that he is an alien who 22 reentered 23 Sandoval, 440 F.3d at 1285. Thus, petitioner concededly satisfie[d] 24 the statutory predicates for reinstatement. Morales-Izquierdo, 486 and before the us U.S. all of illegally the after 14 facts being necessary previously to warrant deported. De 1 F.3d 2 demands, including the presence of counsel, would have changed this. 3 We therefore need not determine the constitutional adequacy of the 4 existing procedures as to aliens who would dispute the factual bases 5 for reinstatement. Id. 6 at The 495. None absence of of the the additional requisite procedural prejudice protections further he precludes 7 petitioner from challenging the constitutionality of 8 C.F.R. § 241.8 8 on its face. Our role is to provide relief to claimants . . . who 9 have suffered . . . actual harm. Lewis v. Casey, 518 U.S. 343, 349 10 (1996). We therefore reject petitioner s due process claims. 11 We note, however, that despite the lack of a formal hearing, the 12 fast-track reinstatement process under 8 C.F.R. § 241.8 is not devoid 13 of 14 obtain the prior order of . . . deportation relating to the alien. 15 Id. § 241.8(a)(1). Second, if the alien s identity is disputed, the 16 officer 17 previously deported alien; [i]n the absence of fingerprints in a 18 disputed 19 reinstatement regulation]. Id. § 241.8(a)(2). Third, in making the 20 crucial finding that the alien reentered the U.S. unlawfully, the 21 officer must consider all relevant evidence, including statements 22 made by the alien and any evidence in the alien s possession. Id. § 23 241.8(a)(3). If the alien claims lawful admission, the officer shall 24 attempt to verify the claim by checking the available ICE databases. procedural must case safeguards. compare the the alien First, alien s shall [t]he fingerprints not 15 immigration be removed with officer those pursuant of to must the [the 1 Id. Last, even when the officer finds that the alien is subject to 2 removal, 3 determination and be advised of the right to submit a written or 4 oral statement contesting the determination, which the officer must 5 then take into account. Id. § 241.8(b). If the alien expresses a 6 fear of returning to the country designated in [the reinstatement] 7 order, the alien shall be immediately referred to an asylum officer 8 for an interview. Id. § 241.8(e). The alien may also challenge the 9 reinstatement order in a court of appeals. 8 U.S.C. § 1252(a). 10 C. Collateral Review of the Underlying Deportation Order. 11 Petitioner asks us to vacate the reinstatement order also on the 12 ground that the underlying deportation proceeding deprived him of due 13 process. 14 prohibits us from giving petitioner a second bite at the apple. See 8 15 U.S.C. § 1231(a)(5) ( [T]he prior order of removal . . . is not 16 subject to being reopened or reviewed . . . . ); Fernandez-Vargas, 17 548 U.S. at 34-35. Petitioner had the right to challenge the validity 18 of the original deportation proceeding in a direct appeal to the BIA, 19 but he did not exercise it. the alien However, must the be notified reinstatement in of writing removal of this statute adverse expressly 20 This outcome does not offend due process because, regardless of 21 the process afforded in the underlying order, reinstatement of the 22 prior deportation order does not alter petitioner s legal condition. 23 Morales-Izquierdo, 486 F.3d at 497. The statute does not penalize an 24 alien for the reentry (criminal 16 and civil penalties do that). 1 Fernandez-Vargas, 548 U.S. at 44. It merely gives effect to a final 2 order issued after a formal hearing before an immigration judge. The 3 purpose is to stop an indefinitely continuing violation that the 4 alien himself could end . . . 5 Id. As the Ninth Circuit put it, [w]hile aliens have a right to fair 6 procedures, they have no constitutional right to force the government 7 to re-adjudicate a final removal order by unlawfully reentering the 8 country. Morales-Izquierdo, 486 F.3d at 498. 9 In seeking to set by voluntarily leaving the country. aside the reinstated deportation order, 10 petitioner relies on United States v. Mendoza-Lopez, 481 U.S. 828 11 (1987). However, that case recognized an alien s right to attack 12 collaterally 13 subsequent criminal proceeding for illegal reentry where the prior 14 deportation is an element of the crime, and where direct judicial 15 review of the original proceeding was not available due to procedural 16 defects. Id. at 838-39 & 839 n.17. 17 D. Waiver of Inadmissibility. 18 Finally, petitioner argues that, before the reinstatement order 19 could be issued, he was entitled to adjudication on the merits of his 20 applications 21 Permission to Reapply for Admission, filed with the DHS on September 22 30, 2005, before the reinstatement order was issued. 6 This Court, a prior for deportation Waiver of order Grounds 6 only of in the context Excludability and of a for In September 2005, petitioner s wife filed a petition for Alien Relative and petitioner applied for adjustment of his immigration status; petitioner also filed petitions for (1) Waiver of Grounds of Excludability and (2) Permission to Reapply for Admission. On April 5, 2006, former 17 1 however, recently 2 Mukasey, 516 3 accorde[d] Chevron deference to the BIA s holding [in In re Torres- 4 Garcia, 23 I. & N. Dec. 866 (B.I.A. 2006)] that an applicant who is 5 inadmissible [as a result of having reentered this country illegally 6 after having been removed] is ineligible to apply for adjustment of 7 status from within the United States and is bound by the consent to 8 reapply provision, which requires that he seek permission to reapply 9 for admission from outside of the United States after ten years have F.3d rejected 65 (2d this argument Cir. 2008). 10 passed 11 in In Tenesaca Tenesaca Delgado v. Delgado, we Tenesaca Delgado, 516 F.3d at 73. since his most recent departure from the United States. 12 We understand petitioner s situation, yet we cannot disregard 13 the statutory text. 7 An illegal reentrant is not eligible and may not 14 apply for any relief under the INA. 8 U.S.C. § 1231(a)(5) (emphasis 15 added). 8 Petitioner was permanently inadmissible and could seek the counsel for petitioner and his wife withdrew, on behalf of his clients, the petitions for Alien Relative and Adjustment of Immigration Status, yet, significantly, not the applications for Waiver of Grounds of Excludability and Permission to Reapply for Admission. The latter two petitions were not decided until May 29, 2007, after petitioner sought a writ of mandamus against the DHS in the U.S. District Court for the Southern District of New York. 7 See supra note 1. 8 8 C.F.R. § 241.8 does allow an alien subject to reinstatement to (1) express[] a fear of returning to the country designated in [the reinstatement] order ; or (2) apply for adjustment of status under either the Haitian Refugee Immigrant Fairness Act of 1998 or the Nicaraguan Adjustment and Central American Relief Act. In both those instances, reinstatement proceedings halt until there is a final determination on the reasonable fear or adjustment of status claims. See 8 C.F.R. § 241.8(d)(e). Petitioner did indeed express fear of returning to Honduras while in custody and was referred first to an asylum officer and then to an immigration judge, who dismissed the claim in March 2007. Petitioner did 18 1 consent of the Homeland Security Secretary to a new application for 2 admission only after having resided outside the U.S. for a minimum of 3 10 years. See 8 U.S.C. § 1182(a)(9)(C)(i)(II) & (ii). Petitioner 4 admittedly did not satisfy these requirements. 5 6 III. CONCLUSION 7 We have considered all of petitioner s arguments and find them 8 to be without merit. Accordingly, we DENY the petition. not seek review of the BIA s ruling that affirmed the dismissal in July 2007. Thus, the reinstatement order may be properly enforced at the present juncture. 19 1 20

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.