Pedro Ponse v. Loretta E. Lynch , 644 F. App'x 708 ( 2016 )

FILED
NOT FOR PUBLICATION
MAR 01 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PEDRO LUGO PONSE, No. 12-73318
Petitioner, Agency No. A027-116-914
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Department of Homeland Security
Submitted February 8, 2016**
Pasadena, California
Before: BERZON, DAVIS***, and OWENS, Circuit Judges.
Pedro Lugo Ponse, a native and citizen of Mexico, petitions for review of the
Department of Homeland Security’s (“DHS”) September 18, 2012 order reinstating
*
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).
***
The Honorable Andre M. Davis, Senior Circuit Judge for the U.S.
Court of Appeals for the Fourth Circuit, sitting by designation.
his 1984 deportation order. We have jurisdiction pursuant to 8 U.S.C. § 1252. Our
review, however, is “limited to confirming the agency’s compliance with the
reinstatement regulations.” Garcia de Rincon v. DHS, 539 F.3d 1133, 1137 (9th
Cir. 2008). We deny the petition for review.
1. The DHS did not err in issuing Ponse’s reinstatement order where the
record shows that Ponse is an alien, he is the subject of a prior deportation order,
and he illegally reentered the country without inspection immediately following
the execution of his deportation order. See id. (observing that our jurisdiction is
limited to reviewing the “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) (providing that, 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 and is not subject to being reopened
or reviewed”).
2. Ponse first argues that his 1984 deportation order may not be
reinstated because he fears persecution in Mexico. However, in the Record of
Sworn Proceedings executed and signed by Ponse during his interview with a DHS
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officer, Ponse answered “no” when asked whether he had “any fear of persecution
or torture should [he] be removed from the United States.” Because the
immigration officer complied with the reinstatement regulations by verifying
Ponse’s identity, obtaining Ponse’s underlying deportation order, confirming that
Ponse’s 1984 reentry was illegal, and asking Ponse whether he had any fear of
persecution or torture should he be removed from the United States, to which
Ponse responded in the negative, the DHS’s reinstatement of Ponse’s 1984
deportation order survives the narrow review that this Court may conduct. See
Garcia de Rincon, 539 F.3d at 1137.
2. Ponse next argues that his 1984 deportation order cannot be reinstated
because he applied to legalize his immigration status through the Special
Agricultural Workers Program (“SAW Program”) in 1991. The record shows,
however, that the former Immigration and Naturalization Service (“INS”) acted on
and denied Ponse’s SAW Program application on the merits prior to the enactment
of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.
L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), as amended by Pub. L. No. 104-
302 110 Stat. 3656 (Oct. 11, 1996). Further, despite Ponse’s contention to the
contrary, the INS’s issuing of an Employment Authorization card for Ponse’s use
during the pendency of his SAW Program application did not amount to an
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adjustment of his immigration status. See 8 U.S.C. § 1160(d)(2)(B) (providing that,
“[d]uring [the] application period,” an applicant under the SAW Program with
non-frivolous claims is to be “granted authorization to engage in employment in
the United States and be provided an ‘employment authorized’ endorsement or
other appropriate work permit”).
PETITION FOR REVIEW DENIED.
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