Jesus Lara-Nieto v. William P. Barr ( 2019 )


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  •                  United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 18-2232
    ___________________________
    Jesus Lara-Nieto
    lllllllllllllllllllllPetitioner
    v.
    William P. Barr, Attorney General of the United States
    lllllllllllllllllllllRespondent
    ___________________________
    No. 18-3383
    ___________________________
    Jesus Lara-Nieto
    lllllllllllllllllllllPlaintiff - Appellant
    v.
    Chad Wolf, Acting Secretary, Department of Homeland Security; Peter Berg,
    District Director, U.S. Immigration & Customs Enforcement (ICE); William P.
    Barr, Attorney General of the United States
    lllllllllllllllllllllDefendants - Appellees1
    ___________________________
    1
    Appellee Wolf is automatically substituted for his predecessor under Fed. R.
    App. P. 43(c)(2).
    No. 18-3385
    ___________________________
    Jesus Lara-Nieto
    lllllllllllllllllllllPlaintiff - Appellant
    v.
    Chad Wolf, Acting Secretary, Department of Homeland Security; Mario Ortiz,
    District Director, U.S. Immigration & Customs Enforcement (ICE); Peter Berg,
    District Director, U.S. Immigration & Customs Enforcement (ICE); William P.
    Barr, Attorney General of the United States
    lllllllllllllllllllllDefendants - Appellees2
    ____________
    Petition for Review of an Order of the
    Board of Immigration Appeals
    with
    Appeals from United States District Court
    for the District of Minnesota
    ____________
    Submitted: October 16, 2019
    Filed: December 27, 2019
    ____________
    Before LOKEN, SHEPHERD, and STRAS, Circuit Judges.
    ____________
    SHEPHERD, Circuit Judge.
    2
    Appellee Wolf is automatically substituted for his predecessor under Fed. R.
    App. P. 43(c)(2).
    -2-
    In this consolidated appeal, Jesus Lara-Nieto petitions for review of an order
    of the Department of Homeland Security (DHS) reinstating a prior order of removal
    and appeals the dismissal of his related complaints that were filed in federal district
    court. Having jurisdiction under 
    8 U.S.C. § 1252
    (a) and 
    28 U.S.C. § 1291
    , we deny
    his petition for review in the lead case and affirm the district court3 in the
    consolidated cases.
    I.
    Jesus Lara-Nieto, a citizen of Mexico, unlawfully entered the United States in
    1993. In 2003, he was convicted of “Assault-Family Violence” in Texas state court.
    Lara-Nieto was later served with a Notice of Intent to Issue a Final Administrative
    Removal Order (Notice of Intent), charging him with removability as an alien
    convicted of an aggravated felony under 
    8 U.S.C. § 1227
    (a)(2)(A)(iii). In describing
    the type of aggravated felony that Lara-Nieto committed, the Notice of Intent
    erroneously referred to § 101(a)(43)(B) of the Immigration and Nationality Act
    (INA), which defines an aggravated felony, in part, as certain drug-trafficking
    offenses. See 
    8 U.S.C. § 1101
    (a)(43)(B). It did, however, refer to Lara-Nieto’s
    conviction for “Assault-Family Violence” in the factual allegations supporting
    removability.
    After affording Lara-Nieto an opportunity to respond, immigration authorities
    issued a Final Administrative Removal Order on July 1, 2003 (Removal Order). The
    Removal Order stated that Lara-Nieto was convicted of an aggravated felony under
    § 101(a)(43)(F) of the INA, which defines an aggravated felony, in part, as a crime
    of violence. See 
    8 U.S.C. § 1101
    (a)(43)(F). On July 15, 2003, Lara-Nieto was
    removed from the United States.
    3
    The Honorable Donovan W. Frank, United States District Judge for the
    District of Minnesota.
    -3-
    At some point thereafter, Lara-Nieto illegally reentered the country. On April
    27, 2018, DHS reinstated the Removal Order pursuant to 
    8 U.S.C. § 1231
    (a)(5).
    After indicating that he was afraid to return to Mexico, Lara-Nieto participated in a
    reasonable-fear interview via telephone with a DHS asylum officer on May 8, 2018.
    During the interview, Lara-Nieto testified that he feared returning to Mexico because
    his hearing impairment would lead to him being persecuted and make it difficult for
    him to find work. He also stated that he believed that he and his family would be in
    danger if they returned to Mexico, as individuals who return to Mexico from the
    United States are perceived as wealthy and are often extorted by criminals. The
    asylum officer, however, found that Lara-Nieto failed to establish a reasonable fear
    of persecution on the basis of a protected ground or that he would be tortured if
    removed from the United States.
    Lara-Nieto subsequently appealed the asylum officer’s reasonable-fear
    determination to an immigration judge (IJ). The IJ similarly found no reasonable fear
    of persecution on the basis of a protected ground or that Lara-Nieto would be
    tortured. Although Lara-Nieto also challenged the validity of the Removal Order, the
    IJ declined to reach the merits of that order for jurisdictional reasons. The IJ’s denial
    of Lara-Nieto’s appeal became the final agency decision. See 
    8 C.F.R. §§ 208.31
    (g)(1), 1208.31(g)(1); see also Cardoza Salazar v. Barr, 
    932 F.3d 704
    , 706
    n.2 (8th Cir. 2019). Neither the asylum’s officer’s written findings nor the IJ’s order
    clearly distinguish between Lara-Nieto’s claims for withholding of removal and
    claims for protection under the Convention Against Torture (CAT); rather, they
    simply find that he failed to demonstrate a reasonable fear of either persecution or
    torture.
    Lara-Nieto petitioned for review of the order reinstating the Removal Order in
    this Court, and while his petition was pending, he filed two lawsuits in federal district
    court in which he sought review of DHS’s reinstatement of the Removal Order and
    to compel DHS to adjudicate a motion to reopen. He also moved for temporary
    -4-
    restraining orders to prevent his removal from the United States. The district court,
    however, denied his motions and dismissed both lawsuits for lack of jurisdiction.
    Lara-Nieto timely appealed the dismissal of his lawsuits, and those appeals were
    consolidated with his petition for review.
    II.
    We first consider whether the district court correctly dismissed Lara-Nieto’s
    complaints. This Court reviews de novo a district court’s dismissal of a complaint
    for lack of subject-matter jurisdiction. See Mohamed v. Melville, 274 F. App’x 495,
    496 (8th Cir. 2008) (per curiam) (citing Hastings v. Wilson, 
    516 F.3d 1055
    , 1058 (8th
    Cir. 2008)).
    Lara-Nieto argues that, because the circumstances surrounding the entry of the
    Removal Order constitute a “gross miscarriage of justice,” the district court had
    jurisdiction to review DHS’s order reinstating the Removal Order pursuant to
    § 1231(a)(5). We find his argument unpersuasive. Indeed, the relevant statute says
    that “[n]otwithstanding any other provision of law (statutory or nonstatutory) . . . a
    petition for review filed with an appropriate court of appeals . . . shall be the sole and
    exclusive means for judicial review of an order of removal entered or issued under
    any provision of this chapter.” 
    8 U.S.C. § 1252
    (a)(5). We have interpreted this to
    mean that the federal courts of appeals have exclusive jurisdiction to consider the
    propriety of orders reinstating prior orders of removal. See Molina Jerez v. Holder,
    
    625 F.3d 1058
    , 1072 (8th Cir. 2010) (“We agree with the district court’s statement
    that jurisdiction to review the propriety of the Reinstatement Order rests with the
    court of appeals.”); Ochoa-Carrillo v. Gonzales, 
    446 F.3d 781
    , 782 (8th Cir. 2006)
    (“[J]udicial review in the appropriate court of appeals is the sole and exclusive means
    to review a § 1231(a)(5) order reinstating a prior removal order[.]” (internal quotation
    marks omitted)). Accordingly, the district court correctly dismissed Lara-Nieto’s
    complaints for lack of subject-matter jurisdiction.
    -5-
    III.
    Next, we consider whether DHS properly reinstated the Removal Order. This
    Court reviews reinstatement of a prior removal order for substantial evidence and will
    not “overturn DHS’s factual findings unless it would not be possible for any
    reasonable fact-finder to come to the conclusion reached by the administrator.”
    Perez-Garcia v. Lynch, 
    829 F.3d 937
    , 940-41 (8th Cir. 2016) (internal quotation
    marks omitted).
    Section 1231(a)(5) creates a streamlined process for reinstating prior removal
    orders, and it authorizes the Attorney General to reinstate a prior removal order after
    finding that an individual has illegally reentered the United States following removal
    or voluntary departure pursuant to a removal order. See Perez-Garcia, 829 F.3d at
    940. DHS need only show, by clear and convincing evidence, that (1) there is a prior
    order of removal; (2) a subsequent departure from the United States pursuant to that
    order; and (3) an illegal reentry. Id. The alien may then be removed from the United
    States pursuant to the reinstated removal order. See id.
    Lara-Nieto’s petition for review is predicated on a collateral challenge to the
    underlying Removal Order, which he argues is legally infirm. Specifically, he
    complains that: (1) the Notice of Intent erroneously charged Lara-Nieto with
    committing an aggravated felony as defined by 
    8 U.S.C. § 1101
    (a)(43)(B) (defining
    an aggravated felony, in part, as a controlled substance offense); and (2) the Notice
    of Intent and Removal Order failed to identify the state statute under which Lara-
    Nieto was actually convicted. Thus, Lara-Nieto asserts that DHS failed to adequately
    charge and prove the basis for removability in 2003, and he now argues that DHS’s
    reinstatement of the Removal Order constitutes a “gross miscarriage of justice” and
    violates his due process rights.
    -6-
    The reinstatement statute, however, prevents Lara-Nieto from attacking the
    validity of the underlying Removal Order in a petition for review of the reinstatement
    order. See 
    8 U.S.C. § 1231
    (a)(5) (“[T]he prior order of removal is . . . not subject to
    being reopened or reviewed . . . .”); see also Torres-Tristan v. Holder, 
    656 F.3d 653
    ,
    656 (7th Cir. 2011) (declining to entertain challenge to underlying removal order in
    a petition for review of an order reinstating removal order); Garcia-Villeda v.
    Mukasey, 
    531 F.3d 141
    , 150 (2d Cir. 2008) (same). Put simply, “[i]n a challenge to
    reinstatement of a prior final order of removal, our jurisdiction is limited to the
    reinstatement itself and we may not reopen or review the prior order.”
    Mendez-Gomez v. Barr, 
    928 F.3d 728
    , 732 (8th Cir. 2019); see also Gomez-Olvera
    v. Napolitano, 451 F. App’x 611, 613 (8th Cir. 2012) (per curiam) (“We cannot
    review the underlying order, however, in light of the reinstatement statute . . . .
    Accordingly, [petitioner’s] contention that the [prior removal order] was legally
    erroneous must fail.”).
    Accordingly, we lack jurisdiction to consider Lara-Nieto’s arguments
    concerning the validity of the underlying Removal Order. Our review is limited to
    “those issues establishing the agency’s right to proceed under [
    8 U.S.C. § 1231
    (a)(5)]—the alien’s identity, the existence of a prior removal order, and
    whether the alien has unlawfully reentered.” Perez-Garcia, 829 F.3d at 940
    (alteration in original) (internal quotation marks omitted). As Lara-Nieto concedes
    his identity, the existence of the Removal Order, and that he unlawfully reentered the
    United States, we find that substantial evidence supported DHS’s decision to reinstate
    the Removal Order.4
    4
    Although 
    8 U.S.C. § 1231
    (a)(5) strips us of our jurisdiction to review the
    Removal Order, it is worth noting that other circuits have held that the savings
    provision in 
    8 U.S.C. § 1252
    (a)(2)(D) may confer jurisdiction over constitutional
    claims and legal challenges related to an underlying removal order. See, e.g., Luna-
    Garcia De Garcia v. Barr, 
    921 F.3d 559
    , 564-65 (5th Cir. 2019). These circuits,
    however, have almost uniformly held that § 1252(a)(2)(D) is subject to the 30-day
    -7-
    IV.
    Finally, we consider whether the IJ erred in determining that Lara-Nieto was
    ineligible for withholding of removal or protection under CAT. “We review [the]
    denial of an application for withholding of removal or CAT protection under the
    deferential substantial evidence standard.” Mendez-Gomez, 928 F.3d at 733 (internal
    quotation marks omitted).5
    “To qualify for withholding of removal, an applicant must show a clear
    probability . . . that his . . . life or freedom would be threatened in the proposed
    country of removal on account of race, religion, nationality, membership in a
    particular social group, or political opinion.” Mouawad v. Gonzales, 
    485 F.3d 405
    ,
    411 (8th Cir. 2007) (internal quotation marks and citations omitted). The applicant
    must also demonstrate that “any future persecution would be carried out by the
    government or by a group the government is unable or unwilling to control.” De
    filing deadline of § 1252(b)(1)—therefore, in order to use § 1252(a)(2)(D) to
    challenge an underlying removal order, an alien must file his petition for review
    within 30 days of the date of the underlying removal order, not within 30 days of the
    date of the order reinstating the removal order. See id.; Verde-Rodriguez v. Att’y
    Gen. United States, 
    734 F.3d 198
    , 203 (3d Cir. 2013); Cordova-Soto v. Holder, 
    659 F.3d 1029
    , 1031-32 (10th Cir. 2011). But see Vega-Anguiano v. Barr, 
    942 F.3d 945
    ,
    946 (9th Cir. 2019). Because that 30-day period has long since expired, we need not
    determine whether 
    8 U.S.C. § 1252
    (a)(2)(D) vests this Court with jurisdiction to
    consider Lara-Nieto’s collateral challenge to the Removal Order.
    5
    The government urges us to apply an even more deferential “facially
    legitimate and bona fide reason” standard of review. Because we can affirm under
    the more generous substantial evidence standard, we need not consider this issue. See
    Hernandez-Aquino v. Barr, 770 F. App’x 88 (Mem), 88 n.2 (4th Cir. 2019)
    (assuming, without deciding, that the substantial evidence standard of review applies
    because the petitioner’s claims fail under that standard); cf. Andrade-Garcia v. Lynch,
    
    828 F.3d 829
    , 836 (9th Cir. 2016) (rejecting the “facially legitimate and bona fide
    reason” standard and instead applying a substantial evidence standard).
    -8-
    Castro-Gutierrez v. Holder, 
    713 F.3d 375
    , 381 (8th Cir. 2013). “[A]n alien seeking
    to establish persecution based on the violent conduct of private actors must show
    more than difficulty controlling private behavior. Instead, [he] must show that the
    government condoned it or at least demonstrated a complete helplessness to protect
    the victims.” 
    Id.
     (internal quotation marks and citations omitted).
    To obtain relief under CAT, “an alien must instead establish that it is more
    likely than not that he or she would be tortured if removed to the proposed country
    of removal.” Mouawad, 
    485 F.3d at 413
     (internal quotation marks omitted).
    Importantly, “[t]he torture must be inflicted by or at the instigation of or with the
    consent or acquiescence of a public official or other person acting in an official
    capacity.” Cambara-Cambara v. Lynch, 
    837 F.3d 822
    , 826 (8th Cir. 2016) (internal
    quotation marks omitted). “A government does not acquiesce in the torture of its
    citizens merely because it is aware of the torture but powerless to stop it, but it does
    cross the line into acquiescence when it shows willful blindness toward the torture
    of citizens by third parties.” Mouawad, 
    485 F.3d at 413
     (internal quotation marks
    and citations omitted).
    We see no error in the IJ’s determination that Lara-Nieto failed to show that he
    is eligible for withholding of removal. Even if we assume, without deciding, that
    individuals returning to Mexico after living in the United States and individuals with
    hearing impairments constitute cognizable social groups, Lara-Nieto did not
    demonstrate a reasonable possibility he would actually be persecuted on the basis of
    a protected ground should he return to Mexico. First, to the extent Lara-Nieto argues
    that he fears generalized violence in Mexico or extortion by criminals as an individual
    returning to Mexico after living in the United States, his argument fails because he
    did not offer sufficient proof suggesting that he is actually at risk of persecution by
    private actors and that the government of Mexico is unable or unwilling to prevent
    it. Harm arising from such general country conditions does not ordinarily support a
    claim of persecution. See Malonga v. Holder, 
    621 F.3d 757
    , 766 (8th Cir. 2010).
    -9-
    Second, Lara-Nieto’s arguments about persecution arising from his hearing
    impairment are also unpersuasive. Indeed, he testified that he was never physically
    harmed or threatened while in Mexico because of his hearing impairment or any other
    reason. The fact that his disability might hinder his ability to secure employment and
    medical attention and may cause others to discriminate against him, while
    unfortunate, does not rise to the level of persecution. See 
    id.
     (non-specific threats,
    or those lacking in immediacy, do not amount to persecution); see also
    Krasnopivtsev v. Ashcroft, 
    382 F.3d 832
    , 839 (8th Cir. 2004) (noting that “low-level
    types of intimidation or harassment are not sufficiently severe” to constitute
    persecution).
    Similarly, we find no error in the IJ’s determination that Lara-Nieto is
    ineligible for relief under CAT. As discussed above, the asylum officer’s written
    findings and the IJ’s order do not clearly discuss the basis for his claim for protection
    under CAT—instead, they simply state that he has not shown a reasonable fear of
    torture. Lara-Nieto has not pointed us to any facts in the record that would sustain
    a claim for protection under CAT, and he does not appear to present any argument in
    his brief that he would be tortured if removed to Mexico. See Martine v. Lynch, 
    840 F.3d 1002
    , 1005 (8th Cir. 2016) (“‘Torture’ is separately defined and is not
    synonymous with ‘persecution.’”).
    V.
    For these reasons, we deny the petition for review in the lead case and affirm
    the district court in the consolidated cases.
    ______________________________
    -10-