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Moreno-Martinez v. Barr

United States Court of Appeals, Sixth Circuit

July 31, 2019

Jorge Moreno-Martinez, Petitioner,
v.
William P. Barr, Attorney General, Respondent.

          On Petition for Review from a Final Order of the Department of Homeland Security; No. A 099 996 338.

         ON BRIEF:

          Sufen Hilf, HILF & HILF, PLC, Troy, Michigan, for Petitioner.

          Justin R. Markel, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

          Before: COLE, Chief Judge; GRIFFIN and BUSH, Circuit Judges.

          OPINION

          JOHN K. BUSH, CIRCUIT JUDGE.

         Jorge Moreno-Martinez petitions for review of the order of the Department of Homeland Security ("DHS") reinstating Moreno-Martinez's order of removal. Moreno-Martinez argues that he was denied due process because he and his counsel did not receive a copy of the reinstatement order and did not have the opportunity to argue against the validity of his underlying removal order. Moreno-Martinez's constitutional challenge to the reinstatement order has no merit because, even assuming a due-process violation occurred, he has not demonstrated prejudice from that violation. In fact, there can be no prejudice because we have no jurisdiction to reopen the underlying removal order, given that Petitioner failed to challenge that order within thirty days of its issuance, as required by 8 U.S.C. § 1252(b)(1). We therefore DENY the petition for review.

         Moreno-Martinez is a native and citizen of Honduras. He arrived in the United States in 1999, returned to Honduras in 2003, and then reentered the United States in 2004. On January 3, 2007, DHS issued a notice of removal. In a document titled "Notice to Appear," DHS charged Petitioner with violating 8 U.S.C. § 1182(a)(6)(A)(i) because he is "[a]n alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General." That document also ordered Moreno-Martinez to appear on "a date to be set" at "a time to be set." Almost two months later, on February 28, 2007, the immigration court sent Petitioner a "Notice of Hearing in Removal Proceedings." The Notice of Hearing set June 26, 2007, as the initial hearing date for his removal proceedings.

         Petitioner then entered removal proceedings, during which he conceded his charges of removability and applied for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). An immigration judge denied Petitioner's request for asylum, withholding of removal, and relief under the CAT, but granted his additional request for voluntary removal upon payment of a $500 bond. The Board of Immigration Appeals ("BIA") affirmed the immigration judge's decision, denied reinstating the voluntary removal period because of lack of proof that Petitioner paid the bond, and ordered Petitioner to be removed from the United States. Moreno-Martinez did not petition this court for review of the removal order at that time.

         Pursuant to the removal order, Moreno-Martinez left the United States on February 24, 2012. He later returned to the United States, and on August 1, 2018, Immigration and Customs Enforcement detained him. On that same day, DHS filed a Notice of Intent to reinstate its previous removal order dated June 17, 2011. This timely petition for review of the reinstatement order followed.

         We "treat[] reinstatement orders like removal orders for purposes of our review of them." Villegas de la Paz v. Holder, 640 F.3d 650, 654 (6th Cir. 2010) (citations omitted). Accordingly, we review legal questions de novo. Id. at 655 (citing Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009)). "[A]dministrative findings of fact," by contrast, "are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B).

         Moreno-Martinez contends that "DHS violated its own procedures which resulted in severe violation of the Petitioner's right to due process" because "DHS did not provide Petitioner or his counsel a copy of the reinstatement order, nor did they allow him to make a statement contesting the reinstatement determination." Pet'r Br. at 5. According to Petitioner, had DHS given him "the notice of reinstatement and allowed [him] to make a statement, he would have been able to present an argument as to why his underlying removal order was invalid" in light of Pereira v. Sessions, 138 S.Ct. 2105 (2018). Pet'r Br. at 5-6. Under his theory, the immigration court never had jurisdiction to issue the underlying removal order because his notice to appear lacked specific time-and-date information. As a result, the removal order was void ab initio.

         Before turning to the crux of Petitioner's argument, however, we address the government's assertion that this court "lacks jurisdiction to review Petitioner's collateral challenge to his prior order of removal." Resp't Br. at 4. The government's argument, given the underlying statutory framework, actually presents us with a two-fold inquiry. First, we must address whether we have jurisdiction to review a reinstatement order in light of 8 U.S.C. §§ 1231(a)(5), 1252(a)(2)(D). And second, if we have such jurisdiction to review the reinstatement order, we must determine whether Moreno-Martinez is entitled to the relief he requests, which in turn would require that this court have jurisdiction to reopen the removal order. As explained below, we have jurisdiction to review Moreno-Martinez's due-process challenge to the reinstatement order because it presents a constitutional issue that we may review under the jurisdictional grant in § 1252(a)(2)(D). We may not, however, grant the relief that Moreno-Martinez seeks because we lack jurisdiction to reopen the underlying removal order. The petition cannot be granted because it is an untimely collateral attack on the validity of the removal order, which is time-barred by 8 U.S.C. § 1252(b)(1).

         Our inquiry begins with the two principal statutory provisions relating to our jurisdiction over petitions for review of reinstatement of removal orders: 8 U.S.C. §§ 1231(a)(5) and 1252(a)(2)(D). Ordinarily, if DHS "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." 8 U.S.C. § 1231(a)(5). In Villegas, however, we joined our sister circuits in holding that 8 U.S.C. § 1252(a)(2)(D) "re-vests the circuit courts with jurisdiction over constitutional claims or questions of law raised in the context of reinstatement proceedings." 640 F.3d at 656. (citations omitted) (listing cases). We therefore have jurisdiction to hear Petitioner's due-process challenge to the reinstatement order. That we have jurisdiction to review the petition, however, does not mean that Petitioner's due-process challenge entitles him to the relief he seeks-that is, the reopening of the underlying removal order. Assuming that a due-process violation occurred, Moreno-Martinez still must show that he was prejudiced by the violation. See id.; Graham v. Mukasey, 519 F.3d 546, 549 (6th Cir. 2008) ("[W]e need not ...


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