Jorge Moreno-Martinez v. William P. Barr , 932 F.3d 461 ( 2019 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0174p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JORGE MORENO-MARTINEZ, ┐
Petitioner, │
│
> No. 18-3798
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.
Decided and Filed: July 31, 2019
Before: COLE, Chief Judge; GRIFFIN and BUSH, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Sufen Hilf, HILF & HILF, PLC, Troy, Michigan, for Petitioner. Justin R. Markel,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
_________________
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
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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.
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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).
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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 address the merits of a claim if
there is no demonstration of prejudice.” (citation omitted)). This in turn requires showing that
the alleged error “led to a substantially different outcome from that which would have occurred
in the absence of [the] violation[].” Graham, 519 F.3d at 550 (citation omitted).
The sole basis for Moreno-Martinez’s prejudice argument is that he was denied the
opportunity to argue that the immigration judge and the BIA were without jurisdiction to enter
the underlying removal order because the Notice to Appear did not include the date and time for
the initial hearing date.1 However, because (as explained below) we lack jurisdiction to review
the validity of the removal order, Petitioner’s claim must fail; he cannot have been prejudiced by
an inability to make arguments to us that we do not have jurisdiction to hear. Cf. Casillas v.
Holder, 656 F.3d 273, 275 (6th Cir. 2011).
1To be sure, we would have jurisdiction to review a constitutional claim or question of law relating to his
reinstatement proceedings or reinstatement order. See Ovalle-Ruiz v. Holder, 591 F. App’x 397, 401 (6th Cir. 2014)
(holding there was jurisdiction to review challenge that DHS abused its discretion because it reinstated the removal
order without considering all the relevant favorable and unfavorable factors relevant to the exercise of its discretion).
But Moreno-Martinez’s challenge is different. Moreno-Martinez has framed a question of law that would require us
to review the validity of his underlying removal order and thus his challenge ultimately amounts to a collateral
attack on the underlying removal order. Indeed, he asks us to “vacate[] the Petitioner’s reinstatement order as well
as his underlying removal order.” Pet’r Br. at 10.
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We lack jurisdiction to review Moreno-Martinez’s assertion that “the Immigration Court
never ‘vested’ jurisdiction over these proceedings,” Pet’r Br. at 8, and vacate the removal order,
because that challenge is time-barred. See 8 U.S.C. § 1252(b)(1). All petitions for review of
final orders of removal “must be filed not later than 30 days after the date of the final order of
removal.” Id.; Prekaj v. INS, 384 F.3d 265, 267 (6th Cir. 2004) (holding that this deadline is
“both mandatory and jurisdictional” (quotation marks omitted)); accord Gor v. Holder, 607 F.3d
180, 185 (6th Cir. 2010). When DHS reinstates “a prior removal order in illegal reentry cases,
DHS does not reissue the prior order (which would restart the 30-day period within which the
alien may file a petition for review) but reinstates the prior order ‘from its original date.’”
Juarez-Chavez v. Holder, 515 F. App’x 463, 466 (6th Cir. 2013) (quoting 8 U.S.C. § 1231(a)(5)).
Thus, any challenge (collateral or otherwise) filed 30 days after the removal order was filed is
untimely and we have no jurisdictional basis to entertain the challenge. 2 Because this collateral
challenge to the removal order was filed well after the 30-day deadline passed, we lack
jurisdiction to grant Petitioner’s proposed remedy—i.e., to reopen the underlying removal
order—and therefore his due-process challenge to the reinstatement order lacks merit.3
For all these reasons, the petition for review is DENIED.
2We recognize that this court in Villegas, 640 F.3d at 656–57, reached the merits of an alien’s due-process
challenge in the context of a petition for review of a reinstatement order. However, Villegas does not control with
respect to this jurisdictional issue because it did not address the jurisdictional relationship between the scope of
review outlined in § 1252(a)(2)(D) and the 30-day deadline in § 1252(b)(1), which is also mandatory and
jurisdictional. See Lewis v. Casey, 518 U.S. 343, 352 n.2 (1996) (“[T]he existence of unaddressed jurisdictional
defects has no precedential effect.” (citations omitted)); Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 91
(1988).
3As this court has explained previously, “we do not preclude the possibility that an alien could raise a
Suspension Clause challenge to § 1252(b)(1) ‘where the provision forecloses judicial review of an underlying
removal order in a reinstatement proceeding; and where, either due to ineffective assistance of counsel or
misconduct by government officials, the alien was prevented from challenging that underlying order and now is
barred from reopening his removal proceedings (as a means to challenge that underlying order) because he is subject
to reinstatement under § 1231(a)(5).’” Ovalle-Ruiz, 591 F. App’x at 400 n.1 (quoting Juarez-Chavez, 515 F. App’x
at 467); see also Casillas, 656 F.3d at 276 (observing that this court reached the merits of the underlying removal
order in Villegas “given that the government caused the delay”); cf. Hamama v. Adducci, 912 F.3d 869, 876 (6th Cir.
2018) (“Congress does not suspend the writ [of habeas corpus] when it strips the courts of habeas jurisdiction so
long as it provides a substitute that is adequate and effective to test the legality of the person’s detention.” (citations
omitted)). We reserve judgment on this issue for another day as Moreno-Martinez did not raise it here.