Familia v. Holder ( 2015 )

14-1181-ag
Familia v. Holder
A072 364 942
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
4th day of March, two thousand fifteen.
PRESENT:
ROSEMARY S. POOLER,
ROBERT D. SACK,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
REYES FAMILIA, AKA JHONNY ALGARIN,
AKA FELIX BUENO, AKA FELIX A.
PEREZ, AKA FELIX A. PEREZBUENO,
AKA RAFAEL ROMERO, AKA JHONNY
SAEZ, AKA RAFAEL REYES FAMILIA,
Petitioner,
v. 14-1181-ag
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Michael J. Campise, Ferro & Cuccia,
New York, N.Y.
FOR RESPONDENT: Edward E. Wiggers, Trial Attorney,
Office of Immigration Litigation,
(Joyce R. Branda, Acting Assistant
Attorney General, Civil Division,
Mary J. Candaux, Assistant Director,
Office of Immigration Litigation, on
the brief), United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of the
U.S. Department of Homeland Security’s (“DHS”) reinstatement
of a prior deportation order, it is hereby ORDERED, ADJUDGED,
AND DECREED that the petition for review is DENIED.
Petitioner Reyes Familia, a native and citizen of the
Dominican Republic, seeks review of DHS’s February 26, 2014
decision to reinstate his prior order of deportation. We
assume the parties’ familiarity with the underlying facts and
procedural history in this case.
“If the Attorney General finds that an alien has reentered
the United States illegally after having been removed . . . 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). After determining
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that an alien is subject to reinstatement, but before
reinstating the prior order of removal, DHS is required to
afford the alien an opportunity to contest the immigration
officer’s findings through a formal oral or written statement,
“which the officer must then take into account.”
Garcia-Villeda v. Mukasey, 531 F.3d 141, 149-50 (2d Cir. 2008);
See 8 C.F.R. § 241.8(b).1 Familia contends that DHS denied him
due process in reinstating his deportation order.
Here, a DHS immigration officer determined that Familia was
an alien previously removed under a 1994 deportation order and
that he reentered the United States without authorization. The
record reveals, and the government concedes, that a DHS
supervisory deportation officer prematurely completed, signed,
and dated the reinstatement form before Familia was in DHS
custody and before he was permitted a chance to contest the
officer’s findings. Although Familia did not acknowledge
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“If an officer determines that an alien is subject to removal
under this section, he or she shall provide the alien with
written notice of his or her determination. The officer shall
advise the alien that he or she may make a written or oral
statement contesting the determination. If the alien wishes
to make such a statement, the officer shall allow the alien to
do so and shall consider whether the alien’s statement warrants
reconsideration of the determination.” 8 C.F.R. § 241.8(b).
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receipt of notice of the officer’s determination until April
11, 2014, the officer apparently certified on February 26, 2014,
to “[h]aving reviewed . . . any statements made or submitted
in rebuttal” to the reinstatement determination.
The government notes that it “afford[ed] Familia the
opportunity to make a statement prior to attempting to enforce
the order” (emphasis added). That is not the process the
regulations provide for aliens subject to reinstatement orders.
Indeed, in upholding the constitutionality of the expedited
reinstatement process under 8 C.F.R. § 241.8, we considered the
requirement of notice and an opportunity to respond among the
“procedural safeguards” ensuring an alien is afforded due
process. See Garcia-Villeda, 531 F.3d at 149-50.
However, “[p]arties claiming denial of due process in
immigration cases must, in order to prevail, allege some
cognizable prejudice fairly attributable to the challenged
process.” Id. at 149 (internal quotation marks and citations
omitted). “[W]hen an alien declines to challenge at the agency
level the findings that support reinstatement of a prior order
of removal, he has no grounds to complain in court that the
reinstatement procedures deprived him of the due process of
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law.” Miller v. Mukasey, 539 F.3d 159, 164 (2d Cir. 2008).
When provided an opportunity to contest the officer’s
reinstatement determination, Familia signed a form indicating
that he did not wish to do so. His failure to contest DHS’s
factual findings at the agency level was equivalent to a
concession of their accuracy. See Miller, 539 F.3d at 164(finding “no meaningful difference between conceding the
predicate facts, on the one hand, and choosing not to contest
them, on the other”). Accordingly, Familia cannot establish
that he was prejudiced by any procedural deficiencies, and his
due process claim fails as a result. See id.For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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