Rafael Martinez-Rodriguez v. Elaine C. Duke

Case: 16-60421 Document: 00514174694 Page: 1 Date Filed: 09/28/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-60421 FILED
Summary Calendar September 28, 2017
Lyle W. Cayce
Clerk
RAFAEL MARTINEZ-RODRIGUEZ,
Petitioner
v.
ELAINE C. DUKE, ACTING SECRETARY, DEPARTMENT OF HOMELAND
SECURITY,
Respondent
Petition for Review of an Order
of the Department of Homeland Security
DHS No. A036 421 288
Before STEWART, Chief Judge, and DENNIS and HAYNES, Circuit Judges.
PER CURIAM: *
Rafael Martinez-Rodriguez (Martinez) petitions for review of an order of
the Department of Homeland Security (DHS) reinstating his prior deportation
order pursuant to 8 U.S.C. § 1231(a)(5). Martinez contends that (1) he
reentered lawfully and the immigration officer violated a reinstatement
regulation by failing to verify his claim that he had been admitted lawfully;
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 16-60421 Document: 00514174694 Page: 2 Date Filed: 09/28/2017
No. 16-60421
(2) the immigration officer violated his right to due process during the
reinstatement proceeding; and (3) reinstatement constituted a gross
miscarriage of justice because he was not removable as charged originally.
There is nothing in the administrative record demonstrating that
Martinez applied for and obtained express consent to reapply for admission
before he reentered, and Martinez does not argue that he applied for or
obtained such express consent. Nor does he argue that the border patrol
agent’s permission to enter the United States was tantamount to the requisite
express consent to reapply for admission. His argument, unsupported by the
record, that he was admitted through the port of entry does not compel a
conclusion that his reentry was not illegal. See Anderson v. Napolitano, 611
F.3d 275, 278 (5th Cir. 2010); Avalos-Martinez v. Johnson, 560 F. App’x 385,
388-89 (5th Cir. 2014).
Relying on facts outside of the administrative record, Martinez contends
that he was denied due process during the reinstatement proceeding. Aliens
do have a Fifth Amendment right to due process in reinstated removal
proceedings, Ojeda-Terrazas v. Ashcroft, 290 F.3d 292, 302 (5th Cir. 2002), but
an alien must make an initial showing of substantial prejudice to prevail on a
due process challenge, De Zavala v. Ashcroft, 385 F.3d 879, 883 (5th Cir. 2004).
Martinez has not shown that the result in this case would be different if he had
been given the procedural safeguards he seeks, so his due process challenge
fails. See Ojeda-Terrazas, 290 F.3d at 302.
Martinez has not shown a gross miscarriage of justice, leaving this court
without authority to review his prior removal order. See Martinez v. Johnson,
740 F.3d 1040, 1042 (5th Cir. 2014); Ramirez-Molina v. Ziglar, 436 F.3d 508
513-14 (5th Cir. 2006).
The petition for review is DENIED.
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