Hector Valadez Aguilar v. Loretta E. Lynch , 633 F. App'x 384 ( 2016 )

FILED
NOT FOR PUBLICATION JAN 27 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HECTOR RAMON VALADEZ No. 14-71276
AGUILAR,
Agency No. A200-806-984
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Department of Homeland Secuity
Submitted January 20, 2016 **
Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.
Hector Ramon Valadez Aguilar, a native and citizen of Mexico, petitions for
review of the Department of Homeland Security’s (“DHS”) April 22, 2014, order
reinstating his 2010 expedited order of removal. Our jurisdiction is governed by 8
U.S.C. § 1252. We review de novo claims of citizenship. Solis-Espinoza v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Gonzales, 401 F.3d 1090, 1092 (9th Cir. 2005). We review de novo constitutional
challenges to reinstatement orders, but our review is otherwise “limited to
confirming the agency’s compliance with the reinstatement regulations.” Garcia
de Rincon v. DHS, 539 F.3d 1133, 1136-37 (9th Cir. 2008). We deny in part, and
dismiss in part, the petition for review.
Contrary to Valadez Aguilar’s contention, the record before us presents no
genuine issue of material fact requiring us to transfer this petition for review to the
district court for a hearing on Valadez Aguilar’s claimed derivative United States
citizenship. See 8 U.S.C. § 1252(b)(5)(A) (where court of appeals determines from
the record that no genuine issue of material fact about petitioner’s nationality is
presented, court shall decide the claim). Valadez Aguilar’s statements in his 2014
Record of Sworn Statement provide evidence of his foreign birth, giving rise to a
rebuttable presumption of alienage and shifting the burden of proof to Valadez
Aguilar to establish derivative United States citizenship by a preponderance of the
evidence. See Scales v. INS, 232 F.3d 1159, 1163 (9th Cir. 2000). Valadez
Aguilar has failed to meet his burden. See Carrillo-Gonzalez v. INS, 353 F.3d
1077, 1079 (9th Cir. 2003) (statements by counsel are not evidence). Thus, we
find that Valadez Aguilar failed to establish a genuine issue of material fact
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regarding his nationality. Valadez Aguilar’s contention that DHS failed to inquire
into his citizenship is belied by the record.
Accordingly, the DHS did not err in issuing Valadez Aguilar’s reinstatement
order, where the record shows that he is an alien, he was subject to a prior order of
removal in 2010, and he illegally reentered subsequent to that order. See Garcia de
Rincon, 539 F.3d at 1137 (our jurisdiction is limited to reviewing “three discrete
inquiries an immigration officer must make in order to reinstate a removal order:
(1) whether the petitioner is an alien; (2) whether the petitioner was subject to a
prior removal order, and (3) whether the petitioner re-entered illegally”); 8 U.S.C.
§ 1231(a)(5) (if the 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”).
We lack jurisdiction to consider Valadez Aguilar’s collateral attacks on his
October 2011 reinstatement order, November 2010 expedited removal order, and
July 2010 voluntary return to Mexico. See id. at 1138 (noting that, “whatever
relief might be gained by the operation of § 1252(a)(2)(D) and the ‘gross
miscarriage’ standard, it is unavailable to [petitioner] because her underlying
removal order is an expedited removal order that is subject to additional
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jurisdictional bars,” citing 8 U.S.C. § 1252(a)(2)(A), (e)); 8 U.S.C. § 1252(a)(1),
(b).
We do not consider the “Supplemental AR” cited to by the government
because it was not filed with this court. See Fisher v. INS, 79 F.3d 955, 963-64
(9th Cir. 1996) (en banc).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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