Amos v. Holder , 358 F. App'x 261 ( 2009 )

08-1859-ag
Amos v. Holder
BIA
Rast, IJ
A41-653-019
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUM M ARY
ORDERS FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY THIS COURT’S
LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER
PAPER IN WHICH A LITIGANT CITES A SUM M ARY ORDER, IN EACH PARAGRAPH IN WHICH A
CITATION APPEARS, AT LEAST ONE CITATION M UST EITHER BE TO THE FEDERAL APPENDIX OR
BE ACCOM PANIED BY THE NOTATION: “(SUM M ARY ORDER).” A PARTY CITING A SUM M ARY
ORDER M UST SERVE A COPY OF THAT SUM M ARY ORDER TOGETHER WITH THE PAPER IN WHICH
THE SUM M ARY ORDER IS CITED UNLESS THE SUM M ARY ORDER IS AVAILABLE IN AN
ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE WITHOUT PAYM ENT OF FEE (SUCH
AS THE DATABASE AVAILABLE AT http://www.ca2.uscourts.gov/). IF NO COPY IS SERVED BY REASON
OF THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION M UST INCLUDE
REFERENCE TO THAT DATABASE AND THE DOCKET NUM BER OF THE CASE IN WHICH THE ORDER
WAS ENTERED.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 23rd day of December, two thousand nine.
PRESENT:
PIERRE N. LEVAL,
PETER W. HALL,
DEBRA ANN LIVINGSTON,
Circuit Judges.
______________________________________________
DONOVAN AMOS,
Petitioner,
v. No. 08-1859-ag
ERIC H. HOLDER, JR.,* United States Attorney General, U.S. Department of Justice
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Holder is
automatically substituted for former Attorney General Michael Mukasey.
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Respondent.
______________________________________________
FOR PETITIONER: MELISSA M. DESVARIEUX, Law Offices of Spar and Bernstein,
P.C., New York, N.Y.
FOR RESPONDENT: MATT A. CRAPO, Office of Immigration Litigation, Civil
Division, U.S. Department of Justice, Washington, D.C. (Tony
West, Assistant Attorney General, Keith I. McManus, Senior
Litigation Counsel, on the brief).
Appeal from a Department of Homeland Security reinstatement order.
UPON DUE CONSIDERATION of the March 25, 2008 order by the Department of
Homeland Security reinstating a July 21, 2000 order of removal entered against Petitioner, it is
hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DISMISSED
and DENIED in part.
Petitioner Donovan Amos (“Mr. Amos”), a native and citizen of Jamaica, seeks review of
a March 25, 2008 order by the Department of Homeland Security (“DHS”) reinstating a July 21,
2000 order of removal entered against Petitioner by an Immigration Judge. We assume the
parties’ familiarity with the facts, procedural context, and specification of appellate issues.
8 C.F.R. § 241.8(a) provides, in relevant part, that before reinstating a prior order of
removal, an immigration officer must determine: (1) whether the alien has been subject to a prior
order of removal; (2) the identity of the alien and whether, in fact, the alien is the same person
who was previously removed; and (3) whether the alien unlawfully reentered the United States.
The regulation also provides that in determining whether the alien unlawfully reentered, the
officer shall consider “all relevant evidence,” and if an alien claims that he was lawfully
admitted, the immigration officer shall attempt to verify that claim. 8 C.F.R. § 241.8(a)(3).
Once an immigration officer has established that an alien is indeed an illegal reentrant subject to
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the reinstatement of removal statute, 8 U.S.C. § 1231(a)(5), the officer must order the alien
“removed under the previous order of exclusion, deportation, or removal in accordance with
section 241(a)(5) of the [Immigration and Nationality] Act.” 8 C.F.R. § 241.8(c).
Mr. Amos argues that the deportation officer erred in reinstating the prior removal order
because he did not properly assess whether Mr. Amos’s entry was unlawful. However, the
record is clear that the deportation officer abided by section 241.8(a)(3). First, Mr. Amos never
asserted that he had been lawfully admitted. Indeed, on the Notice of Intent/Decision to
Reinstate Prior Order, Mr. Amos checked a box claiming that he did “not wish to make a
statement contesting the determination” that he was removable as an alien who had illegally
reentered. Thus, there was no lawful admittance claim for the officer to “verify.” Second, in
considering “all relevant evidence,” the officer was entitled to take note of the fact that Mr.
Amos was required to get permission from the Attorney General before reentering the United
States because he had been convicted of an aggravated felony and that Mr. Amos himself
admitted that he did not get such permission. Therefore, taking into account all relevant
evidence, the immigration officer was entitled to conclude that Mr. Amos had entered the country
unlawfully.
Mr. Amos also argues that his due process rights were violated by the 2000 removal order
because he was unable to assert a request for section 212(c) relief. Section 212(c) of the INA,
since repealed, provided a discretionary waiver of deportation for aliens with at least seven years
of unrelinquished domicile. At the time of Mr. Amos’s removal, section 212(c) was not effective
due to repeal. This Court subsequently ruled that section 212(c) relief was available to aliens
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facing removal after its repeal in certain narrow circumstances. See, e.g., Walcott v. Chertoff,
517 F.3d 149, 151-53 (2d Cir. 2008).
This Court has foreclosed any collateral attack on prior orders of removal during
reinstatement proceedings. In Garcia-Villeda v. Mukasey, 531 F.3d 141 (2d Cir. 2008), we ruled
that the “reinstatement of removal statute expressly prohibits us from giving petitioner a second
bite at the apple” to challenge an underlying deportation proceeding. Id. at 150; see also 8
U.S.C. § 1231(a)(5) ( “[T] he prior order of removal . . . is not subject to being reopened or
reviewed . . . .”); Miller v. Mukasey, 539 F.3d 159, 163-65 (2d Cir. 2008) (per curiam) (affirming
Garcia-Villeda’s holding). This is so even in the face of due process challenges. See
Garcia-Villeda, 531 F.3d at 150 (Section 1231(a)(5) “does not offend due process because,
regardless of the process afforded in the underlying order, reinstatement of the prior deportation
order does not alter petitioner’s legal condition.” (internal quotation marks omitted)).
Accordingly, we do not rule on the lawfulness of the order of removal.
For the foregoing reasons, the petition for review is DISMISSED in part and DENIED in
part.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
By:________________________
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