Reynaldo Galicia-Vargas v. Eric Holder, Jr. , 586 F. App'x 119 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1225
REYNALDO GALICIA-VARGAS,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General; JEH JOHNSON,
Secretary of the Department of Homeland Security,
Respondents.
On Petition for Review of an Order of the Department of Homeland
Security.
Submitted: November 20, 2014 Decided: December 2, 2014
Before NIEMEYER, AGEE, and KEENAN, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Jaime Jasso, LAW OFFICES OF JAIME JASSO, Westlake Village,
California, for Petitioner. Joyce R. Branda, Acting Assistant
Attorney General, Stephen J. Flynn, Assistant Director, Kathryn
M. McKinney, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondents.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Reynaldo Galicia-Vargas, a native and citizen of
Mexico, petitions for review of an order of the immigration
judge (“IJ”) finding that Galicia-Vargas did not establish a
reasonable possibility that he will be persecuted on account of
his race, religion, nationality, membership in a particular
social group, or his political opinion, or that he has a
reasonable possibility of being tortured in the country of
removal. The IJ returned the case to the Department of Homeland
Security (“DHS”) for removal. We deny the petition for review.
Galicia-Vargas was removed under an order of removal
on or about August 18, 1998. He was subsequently found in
Henrico, Virginia, admitted that he was in the country
illegally, and was detained by authorities with the DHS. Under
8 U.S.C. § 1231(a)(5) (2012), if an alien illegally reenters the
United States after being removed under an order of removal, the
prior order of removal is reinstated by the Attorney General
“and is not subject to being reopened or reviewed, [and] 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 reentry.” Prior to reinstating the
order of removal, the asylum officer must determine that: (1)
the alien has been subjected to a prior order of removal; (2)
the alien before the officer is indeed the alien who was removed
2
under the prior order of removal; and (3) the alien unlawfully
reentered the United States. 8 C.F.R. § 241.8(a) (2014). If
the alien expresses a fear of returning to the home country, an
asylum officer may make a reasonable fear determination. See 8
C.F.R. §§ 208.31(a), 1208.31(a) (2014). The asylum officer’s
negative determination may be reviewed by the IJ. See 8 C.F.R.
§§ 208.31(g), 1208.31(g). If the IJ concurs with the asylum
officer’s conclusion, the case is returned to the DHS for
removal of the alien. “No appeal shall lie from the immigration
judge’s decision.” 8 C.F.R. § 208.31(g)(1). We have
jurisdiction to review the reinstated removal order. Velasquez-
Gabriel v. Crocetti, 263 F.3d 102, 105 (4th Cir. 2001); see also
Garcia v. Holder, 756 F.3d 885, 890 (5th Cir. 2014).
Galicia-Vargas does not challenge the finding that he
did not establish a reasonable possibility that he will be
persecuted on account of a protected ground or tortured or that
he was subject to removal. Accordingly, these issues are
waived. See Suarez-Valenzuela v. Holder, 714 F.3d 241, 248-49
(4th Cir. 2013). Galicia-Vargas does raise a challenge to the
underlying order of removal. The prior order of removal “is not
subject to being reopened or reviewed.” 8 U.S.C. § 1231(a)(5).
He contends that under 8 U.S.C. § 1252(a)(2)(D) (2012), he is
entitled to raise constitutional claims or questions of law.
Because Galicia-Vargas’ petition for review is not timely as to
3
the underlying order of removal, we do not have jurisdiction to
review the order. See Verde-Rodriquez v. Att’y Gen., 734 F.3d
198, 202-03 (3d Cir. 2013); Cordova-Soto v. Holder, 659 F.3d
1029, 1032 (10th Cir. 2011); Avila v. Att’y Gen., 560 F.3d 1281,
1285 (11th Cir. 2009).
Galicia-Vargas also contends that he should have been
allowed to apply for asylum. We find this contention to be
without merit. See Fernandez-Vargas v. Gonzales, 548 U.S. 30,
34-35 & n.4 (2006); Rodriguez v. Att’y Gen., 735 F.3d 1302, 1305
(11th Cir. 2013); Herrera-Molina v. Holder, 597 F.3d 128, 139
(2d Cir. 2010).
Accordingly, we deny the petition for review. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
PETITION DENIED
4