Yanez-Torres v. INS

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 4 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JESUS MANUEL YANEZ-TORRES,
Petitioner,
v. No. 99-9504
(No. A20679872)
IMMIGRATION & (Petition for Review)
NATURALIZATION SERVICE,
Respondent.
ORDER AND JUDGMENT *
Before EBEL , KELLY , and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Petitioner Jesus Manuel Yanez-Torres challenges the reinstatement of his
June 22, 1981 deportation order pursuant to 8 U.S.C. § 1231(a)(5) (Supp. 1998),
and his subsequent deportation to Mexico on January 19, 1999. We have
jurisdiction to review the final order reinstating the 1981 deportation order under
8 U.S.C. § 1252(a)(1) (Supp. 1998) (review of final orders of removal), and we
affirm.
I. Background facts and proceedings
Petitioner, a native and citizen of Mexico, has a lengthy history of illegal
entries into and deportations from the United States, beginning in 1972. In 1973
petitioner, who had illegally entered the United States without inspection, was
given thirty days to voluntarily depart because his infant daughter was ill. See
R. at 357. Several extensions of his voluntary departure date were granted due
to his child’s illness, extending his stay to November 1, 1974. See id. at 353-54.
The record does not indicate whether he departed by that date.
In October 1976 petitioner was apprehended while illegally entering the
United States. See id. at 348. Although no document in the record evinces the
actual issuance of a priority date by a United States consular official, see also
R. at 320 (stating in 1981 that petitioner’s claim that he had a visa priority date
of August 12, 1976, was not documented), the immigration officer noted that
petitioner claimed a priority date of August 12, 1976, and granted petitioner
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a six-month extension to depart from June 22, 1977. See id. An additional
extension was granted to July 16, 1978. See id. at 340. On November 6, 1979,
petitioner applied for, and was apparently granted, a one-year extension on his
statement that he was still awaiting a consulate appointment under Silva v. Levi ,
No. 76-C-4268 (N.D. Ill. Mar. 10, 1977). 1
See id. at 303, 335, 337.
Petitioner was arrested again on June 9, 1980, while illegally entering the
United States, see id. at 332, and he was ordered to be deported on June 16, 1980.
See id. at 325. Petitioner either never left or illegally reentered the United States,
1
The court in Silva issued an injunction enjoining the INS from deporting
certain Western Hemisphere aliens, including those from Mexico, with visa
priority dates between July 1, 1968, and December 31, 1976, because of an
erroneous allocation of visas. See Ventura-Escamilla v. INS , 647 F.2d 28, 29 n.2
(9th Cir. 1981). A “ Silva notice” or letter informed the alien that the INS would
be “taking no action on [your] case until further order from the Court. This
means that you are permitted to remain in the United States without threat of
deportation or expulsion until further notice.” Bagues-Valles v. INS , 779 F.2d
483, 484 (9th Cir. 1985). When the Silva injunction was vacated on November 1,
1981, because all of the “recaptured visas” had been issued by October 1981, the
INS proceeded with deportation actions against those who had still not received
visas. See Silva Order of Dec. 18, 1981 (attached as Addendum C to
Respondent’s Br.) . While the record indicates that petitioner’s wife may have had
Silva status in 1980, see R. at 303, it appears that petitioner has never had such
status. See R. at 322 (March 19, 1981 memorandum stating that petitioner’s
attorney appeared in the Denver immigration office “to request Silva letter for his
client” and noting that petitioner’s wife had “recently been approved issuance of a
Silva Letter.”) Even if petitioner once had Silva status, however, once he left the
United States and illegally reentered after March 11, 1977, he may have lost the
protection of the injunction because, under the express provisions of the
injunction, “[n]o alien who entered the United States on or after March 11, 1977
shall be protected by this order.” Silva Temporary Restraining Order issued
April 1, 1977, at 2 (attached as Addendum A to Respondent’s Br.).
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and he was ordered to surrender for investigative processing on March 19, 1981.
See id. at 322. On June 22, 1981, petitioner was again found to be deportable
and was granted voluntary departure with the deportation order to automatically
become effective on August 22, 1981, if petitioner failed to depart. See id.
at 197. Petitioner did not appeal from that order. The Immigration and
Naturalization Service (INS) denied his August 1981 request to apply for
admission after deportation. See id. at 317, 320-21. Although his wife told
immigration officials in 1982 that petitioner left the United States in accordance
with the order granting voluntary departure, see id. at 211, petitioner was again
arrested in the United States on January 11, 1985, and the 1981 deportation order
was immediately executed at the INS’s expense. See id. at 162, 217.
Petitioner again illegally reentered the United States in January or
November 1985, compare id. at 106 with id. at 251, and in 1997 again applied for
an adjustment of status, see id. at 109-112. In his application, he swore that he
had been in the United States since 1972 except for one week in 1982, and that he
had never been deported. See id. at 109, 111.
On January 11, 1999, petitioner was notified that the INS intended to
reinstate his 1981 deportation order and was given an opportunity to respond.
See id. at 106. A final order was issued on January 18, 1999, and he was deported
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to Mexico by the INS on January 19, 1999, see id. at 103. He filed a petition for
review on February 12, 1999.
II. Jurisdiction
Citing 8 U.S.C. § 1252 (Supp. 1998), respondent argues that, while this
court may review the propriety of the reinstatement of the 1981 deportation order,
we lack jurisdiction to entertain a collateral attack on the validity of the order
itself. We agree. Section 1252(d)(1) provides that a final order of removal may
be judicially reviewed only if “the alien has exhausted all administrative remedies
available to the alien as of right.” Further, § 1231(a)(5) provides that a removal
order that is reinstated on the basis of a subsequent illegal entry “is not subject to
being reopened or reviewed.” Because petitioner failed to timely exhaust his
administrative remedies or to timely seek review of the 1981 deportation order,
we do not now have jurisdiction to review the underlying validity of that order.
Cf. De Souza v. Barber , 263 F.2d 470, 474 (9th Cir. 1959) (holding that alien
whose deportation order had been reinstated pursuant to this section (under prior
law) but who did not seek review of the order or question its validity when
initially issued may not collaterally attack the order in habeas proceedings
following deportation after reinstatement). We therefore do not address
petitioner’s argument that the Silva injunction somehow “voided” the 1981
deportation order.
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III. Discussion
A. Application of the reinstatement statute. Under § 1231(a)(5),
[i]f 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 chapter, and the alien shall be removed under the prior
order at any time after the reentry.
This section was formerly codified in essentially the same language at 8 U.S.C.
§ 1252(f) (1994), and has been part of the immigration law at least since 1952.
See, e.g., Mesina v. Rosenberg , 278 F.2d 291, 294 & n.5 (9th Cir. 1960). The
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA),
Pub.L. No. 104-208, Div. C, 110 Stat. 3009 (1996), amended and recodified
certain provisions of immigration law, including this section.
Petitioner argues that if the INS has authority to reinstate deportation
orders, then petitioner must be deemed to have been in deportation proceedings as
of January 11, 1999, and that the Attorney General therefore improperly applied
§ 1231(a)(5) retroactively. We reject this argument. In general, section 309(a)
of IIRIRA provides that the effective date of IIRIRA’s amendments was April 1,
1997. For aliens who were in exclusion or deportation proceedings on that date,
however, transitional rules applied pre-amendment law in most cases. See
§ 309(c)(1); Reno v American-Arab Anti-Discrimination Comm ., 119 S. Ct. 936,
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940-41 (1999). Even if petitioner were deemed to have been in deportation
proceedings on January 11, 1999, an alien is subject to the transitional rules only
if he was in deportation proceedings on April 1, 1997. Clearly, petitioner was not
involved in any deportation proceedings on that date even though he was illegally
present in the United States at that time. Further, even if petitioner had been
subject only to pre-IRRIRA law, the Attorney General still could have properly
reinstated the 1981 deportation order under the former section providing for
reinstatement and removal.
B. Failure to verify petitioner’s identity through fingerprinting. Petitioner
next argues that his removal under § 1231(a)(5) was illegal because the
immigration regulations provide that, in disputed cases, the verification of
identity must be accomplished by a comparison of fingerprints between the
previously deported alien and the alien subject to the reinstatement proceedings.
Petitioner has never disputed and does not now dispute, however, that he is in fact
the alien deported pursuant to the June 22, 1981 order of deportation. The INS
properly identified him as such and was not required to conduct a fingerprint
comparison.
C. Alleged due process violation. Without citing any authority or
producing any record to this court that supports his allegations, petitioner argues
that he was denied due process of law because he could not make an application
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for cancellation of removal under 8 U.S.C. § 1229(a)(1) due to the Board of
Immigration Appeals’ (BIA) failure for a period of ten years to rule on his appeal
from the INS’s denial in 1988 of his application for adjustment of status under
a limited legalization program. He fails to state how the BIA’s failure to rule
“prevented” him from applying for cancellation of removal, and we find no merit
to his claim.
The INS’s final order dated January 18, 1999, reinstating and executing
petitioner’s 1981 order of deportation is AFFIRMED.
Entered for the Court
David M. Ebel
Circuit Judge
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