De Leon v. Ashcroft , 105 F. App'x 176 ( 2004 )

MEMORANDUM ^**

Gregorio Vitales De Leon petitions for review of the Immigration and Naturalization Service’s order reinstating his prior order of deportation under I.N.A. § 241(a)(5), 8 U.S.C. § 1231(a)(5). We have jurisdiction to review De Leon’s petition for review of a reinstatement order under I.N.A. § 242(a), 8 U.S.C. § 1252(a). See Castro-Cortez v. INS, 239 F.3d 1037, 1043-44 (9th Cir.2001). For the reasons set forth below,¹ we deny De Leon’s petition.²

De Leon first contends that the reinstatement statute is inapplicable to him because he was deported, not removed. He points to the text of the statute, which reads in full:

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 Act, and the alien shall be removed under the prior order at any time after reentry.

8 U.S.C. § 1231(a)(5). De Leon reasons that because this statute only refers to orders of “removal,” it is inapplicable to deportation orders.

De Leon’s position, however, is impossible to square with IIRIRA § 309(d)(2): “any reference in law to an order of removal shall be deemed to include a reference to an order of exclusion and deportation or an order of deportation.” As the Fourth Circuit has explained, “IIRIRA § 309(d)(2) expands the definition of removal in [the reinstatement statute] to include deportation.” Valasquez-Gabriel v. Crocetti 263 F.3d 102, 105 (4th Cir.2001). Similarly, we have held that “although [the reinstatement statute] refers to ‘removal,’ this also applies to orders of deportation.” Gallo-Alvarez v. Ashcroft, 266 F.3d 1123, 1129 n. 3 (9th Cir.2001). Accordingly, we reject De Leon’s first contention because it is contrary to the plain text of the statute and our precedent.

Second, De Leon contends that the reinstatement statute cannot retroactively apply to him because his deportation order was entered before IIRIRA’s enactment. We have held, however, that the reinstatement statute “applies to situations in which the predicate order of deportation was entered prior to the 1996 revisions of the immigration law.” Gallo-Alvarez, 266 F.3d at 1129. Accordingly, De Leon’s retroactivity challenge is foreclosed by our precedent.

Third, De Leon argues that the reinstatement procedure violates due process. We recently held that the issue of whether the reinstatement statute affords adequate procedural protections had been “reserved” in our previous cases. Padilla v. Ashcroft, 334 F.3d 921, 924 (9th Cir. 2003). But as we recently said in Padilla, “we still need not decide whether the INS’s regulation offends due process.” 334 F.3d at 924-25. Even if the statute provides inadequate process, De Leon simply cannot establish prejudice. In Padilla, we explained the problem now facing De Leon:

As a predicate to obtaining relief for a violation of procedural due process rights in immigration proceedings, an alien must show that the violation prejudiced him” or her.... She must only demonstrate a “ ‘plausible’ ground for relief.” Petitioner cannot demonstrate even a plausible ground for relief, because she does not challenge any of the three “relevant determinations” underlying a reinstatement order. She admits that (1) she is the alien (2) who was previously removed and (3) who reentered the United States illegally. A hearing before an immigration judge, therefore, could not help her because those are the only three elements at issue in determining whether a reinstatement order is valid.

334 F.3d at 924-25. Thus, unless De Leon can plausibly challenge one of the three requirements for a reinstatement order, he cannot obtain relief.

De Leon admits that all three conditions exist. In De Leon’s sworn statement, he confessed that he was deported and subsequently reentered the United States. Even De Leon’s petition, after admitting that he was subject to a deportation order, concedes that “[o]n or about October 10, 1997, petitioner traveled to Vancouver, Canada and returned to the United States two days later on October 12,1997 through Blaine, Washington, without being inspected by U.S. immigration authorities.” Petitioner’s Brief at 4.

Therefore, De Leon cannot plausibly challenge any of the relevant determinations for a reinstatement order. Accordingly, he cannot demonstrate prejudice. Because De Leon cannot establish prejudice, it is unnecessary to consider whether the reinstatement statute comports with standards of procedural due process.

PETITION DENIED.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . Because the parties are familiar with the facts, we discuss them only insofar as they are necessary to reach our decision.

2 . We review de novo De Leon's statutory interpretation and constitutional arguments. United States v. Carranza, 289 F.3d 634, 642 (9th Cir.2002); See United States v. Stokes, 292 F.3d 964, 966 (9th Cir.2002).