Gustavo Hernandez v. Jefferson Sessions ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 18 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GUSTAVO HERNANDEZ, No. 13-73528
Petitioner, Agency No. A075-668-095
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 11, 2018**
Pasadena, California
Before: ROGERS,*** BYBEE, and WATFORD, Circuit Judges.
Gustavo Hernandez petitions to review the reinstatement of an order of
removal, arguing that the initial removal order should not have been imposed on
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable John M. Rogers, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
him. Because Hernandez cannot challenge his previous removal order in this
collateral manner, we deny the petition for review.
To uphold the reinstatement of an order of removal against a petitioner, a court
must confirm that “(1) petitioner is an alien, (2) who was subject to a prior removal
order, and (3) who illegally reentered the United States.” Morales-Izquierdo v.
Gonzales, 486 F.3d 484, 495 (9th Cir. 2007) (en banc) (citing 8 U.S.C. § 1231(a)(5);
8 C.F.R. § 241.8). It is not disputed that Hernandez is an alien, that he was subject
to the 2001 removal order entered against him, and that he then illegally reentered
the United States. Those facts are enough to confirm that this reinstatement of
Hernandez’s removal order was permissible.
Hernandez objects to this analysis at its second step, contending that the 2001
removal order should not have been entered against him. This is not a permissible
position in this context, however. The reinstatement statute “specifically bars
relitigation of the merits of the reinstated removal order.” Villa-Anguiano v. Holder,
727 F.3d 873, 877 (9th Cir. 2013) (citing 8 U.S.C § 1231(a)(5)). Hernandez’s claims
about the impropriety of the 2001 removal order are nothing more than merits
objections to the 2001 order, and Hernandez cannot wield such a collateral attack in
this petition for review of the reinstatement.
It is true that a court may review an underlying removal order despite the
general prohibition on collateral challenges “if the petitioner can show that he has
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suffered a ‘gross miscarriage of justice’ in the initial deportation proceeding.”
Garcia de Rincon v. Dep’t of Homeland Sec., 539 F.3d 1133, 1138 (9th Cir. 2008)
(quoting Debeato v. Attorney Gen. of U.S., 505 F.3d 231, 235 (3d Cir. 2007)). But
no such gross miscarriage occurred here. Hernandez argues that at the time of his
2001 removal hearing, he was potentially eligible to have adjusted his immigration
status pursuant to Immigration and Nationality Act § 245(i), 8 U.S.C. 1255(i), and
that the hearing judge erred in ordering Hernandez removed, possibly without having
informed him of this possibility. But this argument is built on several layers of
speculation. “Adjustment of status is a discretionary form of relief,” Esquivel-
Garcia v. Holder, 593 F.3d 1025, 1029 (9th Cir. 2010) (emphasis added), in which
the agency’s discretion is broad and largely non-reviewable, see Medina-Morales v.
Ashcroft, 371 F.3d 520, 525 (9th Cir. 2004) (citing 8 U.S.C. § 1252(a)(2)(B)), and
even an approved petition “does not make an alien automatically eligible for
adjustment of status,” since that alien must also meet requirements such as the
existence of an “immediately available” immigrant visa, Diaz-Covarrubias v.
Mukasey, 551 F.3d 1114, 1116 (9th Cir. 2009). Even if Hernandez is correct that
the 2001 hearing judge did not but could have informed him of § 245(i)’s existence,
Hernandez therefore still would have had to overcome numerous hurdles for §
245(i)’s protections to have applied.
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The fact of Hernandez’s potential eligibility in 2001 for § 245(i) adjustment
is not enough to prove that the 2001 removal proceeding rose to the level of a “gross
miscarriage of justice,” such that Hernandez can attack the resulting removal order.
Further militating against a finding that there was a gross miscarriage of justice is
the absence of any timely appeal by Hernandez of his underlying order of removal.
The 2001 hearing judge’s possible failure to have informed Hernandez of § 245(i)’s
existence does not suffice to show that Hernandez’s removal order was based on a
gross miscarriage of justice, and Hernandez has no other grounds to challenge the
reinstatement of that order.
The petition for review is denied.
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