Jose Martinez v. Jeh Johnson

Case: 13-60420 Document: 00512511217 Page: 1 Date Filed: 01/24/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-60420 January 24, 2014
Summary Calendar
Lyle W. Cayce
Clerk
JOSE APOLINAR MARTINEZ, Also Known As M. Jose Apolinar,
Also Known as Apoinar Garcia Martinez,
Also Known as Jose Apolinar Martin Garcia,
Also Known as Apolinar Garcia Martinez,
Petitioner,
versus
JEH JOHNSON, Secretary, Department of Homeland Security,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals
Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Jose Martinez challenges the reinstatement of an order of removal by
Immigration and Customs Enforcement (“ICE”). He contends that the original
order of deportation must be rescinded as unconstitutional and, alternatively,
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No. 13-60420
that it cannot be reinstated because he legally reentered the United States.
Because we do not have jurisdiction to review the first issue, and because the
second is meritless, we deny the petition for review.
I.
Martinez, a citizen of Mexico, first entered the United States by
unknown method in 1983. In 1990, he was convicted of possession of a weapon,
and in early 1993 he was convicted of burglary and sentenced to five years’
imprisonment. In 1993, the former Immigration and Naturalization Service
(“INS”) took Martinez into custody and issued an order to show cause and
notice of hearing. That order, written in English and Spanish, was personally
served on Martinez, who signed it and a request for a prompt hearing and
waiver of his right to a fourteen-day minimum notice period. The order, how-
ever, was not read to Martinez in Spanish, and no translator was provided.
Two days later, an immigration judge (“IJ”) took Martinez’s pleadings
during a deportation hearing. The IJ annotated the order to show cause and
notice of hearing to reflect the pleadings at the hearing, dating and initialing
the bottom of the page. The IJ found Martinez deportable, noting that the
“Respondent has made no application for relief from deportation.” The INS
issued a warrant of deportation, and Martinez was deported three days later.
In 1997, Martinez reentered by crossing a river and applied for a new
immigration card from the INS without disclosing his previous deportation.
The INS issued him a card under the name “Jose A Martinez” and a new alien
registration number. In 2000, however, INS officials recognized Martinez as
having been previously deported and apprehended him as he reentered the
United States in a bus. Although he told officials that, because he had been
issued a new card, he did not know that his reentry was in violation of his
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deportation order, his removal order was reinstated, and he was deported in
2002. He did not contest that action either before or after his deportation.
That same year, Martinez again reentered. In May 2013, ICE detained
him and reinstated the 1993 deportation order. Martinez refused to sign the
document and declined making a statement contesting the reinstatement
determination but, in June, filed a protest of the reinstatement order and this
petition. He challenges (1) the original 1993 order of deportation as violative
of his due-process rights and (2) the present reinstatement order as improper
because of his legal reentry after deportation.
II.
In addressing Martinez’s challenge to the original order, we must first
decide whether this court has jurisdiction to entertain the petition in this
regard. Congress has specifically eliminated this court’s jurisdiction to reopen
or review original orders of removal in the reinstatement of removal orders
against aliens illegally reentering the United States. See 8 U.S.C. § 1231(a)(5).
But Congress did not preclude the review of constitutional claims or questions
of law raised in a petition for review. See 8 U.S.C. § 1252(a)(2)(D). Any collat-
eral attack on an underlying order of removal, including constitutional or legal
questions, however, may be considered only if the alien demonstrates that
administrative remedies have been exhausted or the initial removal proceed-
ings constituted a gross miscarriage of justice. See Ramirez-Molina v. Ziglar,
436 F.3d 508, 514 (5th Cir. 2006).
Although the record does not indicate that the hearing regarding the
1993 order of deportation took place in absentia and Martinez was in custody
during the entirety of the time at issue, Martinez claims that he did not receive
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notice via certified mail as required in the order to show cause 1; therefore, he
was never afforded the opportunity to participate in the deportation hearing.
This, he claims, constituted a violation of his due-process rights and a gross
miscarriage of justice. Though this court has announced no precise standard
for what constitutes a gross miscarriage of justice, we have held that there is
no gross miscarriage where the petitioner failed to contest his removability in
prior proceedings. See Ramirez-Molina, 436 F.3d at 514–15. 2
Martinez did not contest deportation at any time when initially deported
in 1993 and again failed to do so when his 1993 deportation order was rein-
stated in 2002. Additionally, he repeatedly engaged in self-help by illegally
reentering in violation of his deportation on numerous occasions. That is
enough to foreclose the possibility that the initial removal proceedings could
constitute a gross miscarriage of justice, so we do not have jurisdiction to hear
Martinez’s due-process challenge.
III.
Martinez challenges the legality of the INS’s present reinstatement of
the 1993 removal order, claiming that he legally reentered after his depor-
tation, as witnessed by his receiving a new immigration card; as a result, his
previous deportation order cannot be reinstated. 3 We can decide this claim
“TO BE CALENDARED AND NOTICE PROVIDED BY THE OFFICE OF THE
1
IMMIGRATION JUDGE. NOTICE WILL BE MAILED TO THE ADDRESS PROVIDED BY
THE RESPONDENT.”
2 See also United States ex rel. Steffner v. Carmichael, 183 F.2d 19, 20–21 (5th Cir.
1950) (“[Petitioner] did not elect to test the validity of his 1936 deportation order. He had his
day before the immigration authorities, who decided that he should be deported. There is no
showing that his failure to test the validity of his order was due to any cause other than his
desire not to do so.”).
3 “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
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under 8 U.S.C. § 1252, which provides us jurisdiction to review “orders of
removal.” 4
We addressed this issue in Anderson, 611 F.3d at 276–77. In that case,
a Nigerian immigrant was deported after being convicted of two crimes. Id.
She reentered the United States years later under her new married name, and
an immigration official stamped her passport as she entered. Id. After deter-
mining its mistake, the government reinstated the earlier removal order and
sought to have her deported. Id. We held that the passport stamp did not
suggest that the alien had lawfully reentered the country and that because she
did not first receive permission from the Attorney General to apply for re-
admission as required by statute, 5 she had illegally reentered, and the INS had
properly reinstated her removal order. Id.
Here, as in Anderson, Martinez did not receive permission from the
Attorney General to reapply for readmission. Instead, he illegally crossed the
border and then applied at the INS for a new immigration card, under a
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 reentry.” 8 U.S.C.
§ 1231(a)(5) (emphasis added); see also 8 C.F.R. § 241.8(a) (“In establishing whether an alien
is subject to this section, the immigration officer shall determine the following: (1) Whether
the alien has been subject to a prior order of removal. . . . (2) The identity of the alien . . . .
(3) Whether the alien unlawfully reentered the United States. . . .” (emphasis added)).
4 We have analogized “removal orders” to “reinstatement orders” in the jurisdictional
context. See Anderson v. Napolitano, 611 F.3d 275, 277–78 (5th Cir. 2010). In Anderson, we
did not directly address the effect of 8 U.S.C. § 1252(a)(2)(C) on our jurisdiction to review
reinstatement orders where the underlying removal order involves an aggravated felon or
other criminal alien covered by the statute. It seems unlikely that Congress intended to strip
our jurisdiction regarding the underlying removal order involving criminal aliens but not the
orders reinstating their removal, especially in light of the fact that we have jurisdiction under
8 U.S.C. § 1252 only because of analogizing reinstatement orders with removal orders. We
are, however, bound by our precedent in this matter.
58 U.S.C. § 1182(a)(9)(A)(iii) (“Clauses (i) and (ii) shall not apply to an alien seeking
admission within a period if, prior to the date of the alien’s reembarkation at a place outside
the United States or attempt to be admitted from foreign contiguous territory, the Attorney
General has consented to the alien’s reapplying for admission.” (emphasis added)).
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different identity and number, and without divulging that he previously had
been deported. Successfully deceiving immigration officials into providing one
with a new immigration card does not constitute either permission to reenter
from the Attorney General or legal reentry. Therefore, Martinez’s challenge to
the reinstate order is without merit.
Because Martinez does not present any meritorious challenges over
which we have jurisdiction, the petition for review is DENIED.
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