Luis Rosendo-Gualpa v. Merrick Garland ( 2022 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 7, 2022
Decided February 10, 2022
Before
FRANK H. EASTERBROOK, Circuit Judge
AMY J. ST. EVE, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 21-2300
LUIS ROSENDO-GUALPA, Petition for Review of a Final Removal
Petitioner, Order of the U.S. Department of
Homeland Security.
v. No. A043-912-597
MERRICK B. GARLAND,
Attorney General of the United States,
Respondent.
ORDER
Luis Rosendo-Gualpa unlawfully reentered the United States after his removal to
Ecuador in 2010. When the U.S. Department of Homeland Security discovered that
Rosendo-Gualpa had returned to the United States, it reinstated the prior removal
order. Rosendo-Gualpa has filed this petition seeking review of the 2010 removal order.
Because we lack jurisdiction to review that order, we dismiss his petition.
No. 21-2300 Page 2
Rosendo-Gualpa, a native and citizen of Ecuador, was admitted to the United
States as a lawful permanent resident in 1993. In 1999, he pled guilty to sexual
misconduct in violation of N.Y. Penal Law § 130.20, and he received three years’
probation for that conviction. Ten years later, DHS initiated removal proceedings based
on that sexual-misconduct conviction. On February 19, 2010, an immigration judge
issued an order of removal, and the Board of Immigration Appeals later denied
Rosendo-Gualpa’s appeal. Rosendo-Gualpa did not seek further review of the removal
order, and he was removed to Ecuador in November 2010.
Rosendo-Gualpa reentered the United States at some point before January 2021,
when DHS became aware of his presence in the country. Rosendo-Gualpa was
subsequently arrested, and he later pled guilty to illegal reentry in violation of 8 U.S.C.
§ 1326(a). On June 17, 2021, a federal district court sentenced him to time-served (112
days’ imprisonment). On June 22, 2021, DHS notified Rosendo-Gualpa that it intended
to reinstate his prior removal order. On this notice, Rosendo-Gualpa checked a box
indicating that he did “not wish to make a statement contesting this determination.”
Admin. R. at 1. The immigration officer then determined that Rosendo-Gualpa was
“subject to removal through reinstatement of the prior order, in accordance with section
241(a)(5) of the Act.” Id. On July 14, 2021, Rosendo-Gualpa filed a petition for review in
this court. While the petition was pending, he was removed from the United States to
Ecuador.
In his petition, Rosendo-Gualpa challenges the immigration judge’s 2010
removal order, contending that his sexual-misconduct conviction no longer qualifies as
a valid basis for removal under subsequent Supreme Court precedent. But the deadline
for direct review of the 2010 removal order has long since passed. See 8 U.S.C.
§ 1252(b)(1) (“The petition for review must be filed not later than 30 days after the date
of the final order of removal.”). So Rosendo-Gualpa seeks to collaterally attack the 2010
removal order in this proceeding, which concerns only the reinstatement of the order.
But the statutory provision for reinstatement of prior removal orders following illegal
reentry bars such attacks. It states:
If the Attorney General 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, 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 the reentry.
No. 21-2300 Page 3
8 U.S.C. § 1231(a)(5) (emphasis added).1 As this text and relevant precedents direct, we
have no jurisdiction to review the prior removal order. See Johnson v. Guzman Chavez,
141 S. Ct. 2271, 2285 (2021) (Section “1231(a)(5) explicitly prohibits … review or relief
from the order after it is reinstated following unlawful reentry.”); Villa v. Barr, 924 F.3d
370, 371 (7th Cir. 2019) (dismissing petition because the court “lack[ed] jurisdiction to
review the underlying order of removal”); Cordova-Sota v. Holder, 732 F.3d 789, 790 (7th
Cir. 2013) (holding that illegal reentry after removal “permanently bars reopening that
earlier removal order”).
Instead, we can review only whether DHS properly reinstated the removal order.
See Torres-Tristan v. Holder, 656 F.3d 653, 656 (7th Cir. 2011). But Rosendo-Gualpa has
not challenged the procedures DHS took to reinstate the order of removal. He does not,
for example, dispute that he received proper written notice of DHS’s decision to
reinstate the removal order or challenge the immigration officer’s finding that he was
subject to a prior order of removal and unlawfully reentered the United States. See 8
U.S.C. § 1231(a)(5); 8 C.F.R. § 241.8(a)–(c).
With no jurisdiction to review the 2010 removal order and no challenge to the
reinstatement of that order, we must dismiss Rosendo-Gualpa’s petition.
The petition is DISMISSED.
1Although this provision “refer[s] to the Attorney General, Congress has also empowered the Secretary
of Homeland Security to enforce the Immigration and Nationality Act.” Johnson v. Guzman Chavez, 141 S.
Ct. 2271, 2280 n.1 (2021).