Jacobo Jaimes-Cornejo v. Loretta E. Lynch , 633 F. App'x 383 ( 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NOT FOR PUBLICATION JAN 27 2016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
JACOBO JAIMES-CORNEJO, No. 13-73426
Petitioner, Agency No. A070-129-946
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Department of Homeland Security
Submitted January 20, 2016 **
Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.
Jacobo Jaimes-Cornejo, a native and citizen of Mexico, petitions for review
of the Department of Homeland Security’s (“DHS”) April 24, 2013, order
reinstating his 2002 order of removal. Our jurisdiction is governed by 8 U.S.C.
§ 1252. We review de novo constitutional claims, but our review is otherwise
*
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).
“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.
The DHS did not err in issuing Jaimes-Cornejo’s reinstatement order, where
the record shows, and Jaimes-Cornejo does not meaningfully contest, that he is an
alien, he was subject to a prior order of removal in 2002, 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”).
The record does not support Jaimes-Cornejo’s contention that his
reinstatement order is invalid due to the DHS’s failure to consider the
government’s decision to dismiss criminal charges against him. Cf.
Villa-Anguiano v. Holder, 727 F.3d 873, 880 (9th Cir. 2013) (where “a district
court finds constitutional infirmities in the prior removal proceedings []
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invalidate[d] the prior removal for purposes of criminal prosecution, the agency
cannot simply rely on a pre-prosecution determination to reinstate the prior
removal order.”). Nor does the record support Jaimes-Cornejo’s contention that
the DHS failed to consider documents in the administrative record, including those
supplemented by the government and marked as “Received” by the DHS during
the pendency of reinstatement proceedings. See Kohli v. Gonzales, 473 F.3d 1061,
1068 (9th Cir. 2007) (applying a presumption of regularity regarding the official
acts of public officers).
To the extent that Jaimes-Cornejo raises a procedural due process challenge
regarding an initial clerical error in his 2013 Notice of Intent / Decision to
Reinstate Prior Order, he has not established prejudice. See Lata v. INS, 204 F.3d
1241, 1246 (9th Cir. 2000) (to prevail on a due process challenge, an alien must
show error and prejudice).
Furthermore, Jaimes-Cornejo does not contend that a “gross miscarriage of
justice” occurred in connection with his underlying 2002 removal order. See
Garcia de Rincon, 539 F.3d at 1137-38 (while a petitioner is generally prevented
from collaterally attacking an underlying deportation order on constitutional or
legal grounds, 8 U.S.C. § 1252(a)(2)(D) permits some measure of review if he can
demonstrate a “gross miscarriage of justice” in the underlying proceedings).
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Therefore, Jaimes-Cornejo’s contentions that the BIA improperly truncated his
voluntary departure period in 2002 and that he was unaware that he had lost his
appeal to this court in 2005 due to ineffective assistance of counsel are not
properly before this court. See id.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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