Avelar-Olmos v. Mukasey ( 2008 )

MEMORANDUM ^**

Oscar Avelar-Olmos, a native and citizen of Mexico, petitions for review of the Bureau of Immigration and Customs Enforcement’s decision to reinstate his prior removal order. We have jurisdiction under 8 U.S.C. § 1252. We review de novo claims of due process violations. Ram v. INS, 243 F.3d 510, 516 (9th Cir.2001). We deny the petition for review.

Avelar-Olmos’ challenge to 8 U.S.C. § 1231(a)(5) is foreclosed by MoralesIzquierdo v. Gonzales, 486 F.3d 484, 498 (9th Cir .2007) (en banc) (concluding that a previously removed alien who reenters the country unlawfully is not entitled to a hearing before an immigration judge on whether to reinstate a prior removal order).

Contrary to Avelar-Olmos’ contention, 8 U.S.C. § 1231(a)(5) applies to his expedited removal order. See Morales-Izquierdo, 486 F.3d at 496 n. 14 (“Any mode of departure—voluntary or involuntary—while subject to an order of removal constitutes a removal for reinstatement purposes.”).

Moreover, Avelar-Olmos is precluded from applying for adjustment of status. See Padilla v. Ashcroft, 334 F.3d 921, 925 (9th Cir.2003) (8 U.S.C. § 1231(a)(5) bars an alien who has had a removal order reinstated from adjustment of status).

Avelar-Olmos’ due process contentions are unavailing because he has not demonstrated prejudice. See Padilla, 334 F.3d at 924-25 (requiring prejudice to prevail on a due process claim).

PETITION FOR REVIEW DENIED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.