Victor Villa Serrano v. William P. Barr

In the
United States Court of Appeals
For the Seventh Circuit
No. 18-2886
VICTOR MARTIN VILLA SERRANO,
Petitioner,
v.
WILLIAM P. BARR, Attorney General
of the United States,
Respondent.
On Petition for Review of a Final Removal Order
of the U.S. Department of Homeland Security.
A073 360 777
ARGUED MARCH 26, 2019 — DECIDED MAY 9, 2019
Before BAUER, ROVNER, and BRENNAN, Circuit Judges.
ROVNER, Circuit Judge. In 2007, Victor Martin Villa Serrano
(“Villa”) reentered the United States after having been re-
moved in 2005. When he came to the attention of the govern-
ment in 2018, a deportation officer for U.S. Immigration and
Customs Enforcement (“ICE”) determined that Villa had
2 No. 18-2886
illegally reentered the United States and was subject to
reinstatement of the prior removal order. Villa raises a few
legal challenges to that conclusion, primarily contending that
there is no lawful prior order of removal because the original
“Notice to Appear” was legally deficient and the immigration
judge therefore lacked jurisdiction to enter the order of
removal. Because we lack jurisdiction to review the underlying
order of removal, we dismiss the petition for review.
I.
Villa, a native and citizen of Mexico, originally entered the
United States in March 1988 without inspection or admission
by an immigration officer. He adjusted his status to that of a
lawful permanent resident in August 1995. Approximately
nine years later, he was convicted in state court of possession
of cocaine, and sentenced to a year in prison. On January 12,
2005, the Department of Homeland Security (“DHS”) initiated
removal proceedings against Villa by serving him with a
Notice to Appear (“Notice”). The Notice charged that he was
subject to removal under 8 U.S.C. § 1227(a)(2)(A)(iii) because,
after admission, he had been convicted of an aggravated felony
as defined in 8 U.S.C. § 1101(a)(43)(B). The Notice directed him
to appear before an immigration judge and listed an address
for the hearing. But on the pre-printed lines for “date” and
“time,” the Notice provided only “on a date to be set,” and “at
a time to be set.” Admin. R. at 23–25.
Villa does not dispute that the Immigration Court later
served on him a Notice of Hearing that specified the date and
time of his first hearing. On February 9, 2005, he appeared at
the removal hearing and the immigration judge entered an
No. 18-2886 3
order of removal. Villa waived his right to appeal that decision
and a few weeks later, he was removed to Mexico. The record
contains no corroboration of when, how or where he reentered
the United States, but according to Villa, he returned sometime
in 2007, crossing the border on foot at an unspecified location.
After reentering, he did not come to the attention of immigra-
tion authorities until 2018. On July 31 of that year, DHS served
him with a Notice of Intent/Decision to Reinstate Prior Order
of Removal (“Decision to Reinstate”). Citing 8 U.S.C.
§ 1231(a)(5) and 8 C.F.R. § 241.8 as authority, the Decision to
Reinstate apprised Villa that DHS intended to reinstate the
February 9, 2005 removal order (“2005 Order”) because Villa
had illegally reentered the United States on an unknown date
at an unknown place after previously having been removed.
The Decision to Reinstate advised Villa that he could contest
the determination that he was removable under the prior order
by making an oral or written statement but that he was not
entitled to a hearing before an immigration judge. Thereafter,
Villa filed this petition for review.
II.
In his Petition for Review, Villa contends that the 2005
Order was void because it was entered ultra vires, and therefore
may not be reinstated under 8 U.S.C. § 1231(a)(5). He also
argues that the 2005 removal proceedings under 8 U.S.C.
§ 1229a were never properly initiated and that subject matter
jurisdiction failed to vest with the immigration judge because
his Notice to Appear did not contain all of the required
information. He bases his arguments largely on the Supreme
Court’s recent decision in Pereira v. Sessions, 138 S. Ct. 2105
(2018). The government responds that this court lacks jurisdic-
4 No. 18-2886
tion to consider any challenges to an underlying removal order
in a reinstatement case, and that, in any event, Villa failed to
timely challenge the 2005 Order and failed to exhaust adminis-
trative remedies. By the government’s count, there are at least
three bars to this court considering the validity of the 2005
Order. The government also asserts that, if Villa were able to
overcome those bars to review, his claim would fail on the
merits.
We have the authority and the obligation in every case to
assess our own jurisdiction, and we undertake this review de
novo. Muratoski v. Holder, 622 F.3d 824, 829 (7th Cir. 2010);
Gattem v. Gonzales, 412 F.3d 758, 762 (7th Cir. 2005). The statute
providing for reinstatement of prior orders of removal speci-
fies:
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 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.
8 U.S.C. § 1231(a)(5) (emphasis added). Under the plain
language of this provision, we lack jurisdiction to review the
underlying prior order of removal, in this case, the 2005 Order.
Cordova-Soto v. Holder, 732 F.3d 789, 793 (7th Cir. 2013); Torres-
Tristan v. Holder, 656 F.3d 653, 656 (7th Cir. 2011). See also
Fernandez-Vargas v. Gonzales, 548 U.S. 30, 34–35 (2006) (the
No. 18-2886 5
current version of the reinstatement statute provides for the
broadest use of reinstatement, applying to all illegal reentrants,
and explicitly insulating removal orders from review, while
also generally foreclosing discretionary relief from the terms of
the reinstatement order); Mendoza v. Sessions, 891 F.3d 672, 679
(7th Cir. 2018) (same).
We do, however, have jurisdiction to consider the reinstate-
ment order itself. Torres-Tristan, 656 F.3d at 656;
8 U.S.C. § 1252(a). “Judicial review of a reinstatement order
extends only to whether the reinstatement order was properly
entered.” Torres-Tristan, 656 F.3d at 656. Reinstatement
procedures are limited in scope. Gomez-Chavez v. Perryman, 308
F.3d 796, 801 (7th Cir. 2002). In determining whether an alien
is subject to removal by reinstatement, the immigration officer
must determine:
(1) Whether the alien has been subject to a prior
order of removal. The immigration officer must
obtain the prior order of exclusion, deportation, or
removal relating to the alien.
(2) The identity of the alien, i.e., whether the alien is
in fact an alien who was previously removed, or
who departed voluntarily while under an order of
exclusion, deportation, or removal. …
(3) Whether the alien unlawfully reentered the
United States. …
8 C.F.R. § 241.8(a). See also Gomez-Chavez, 308 F.3d at 801 (to
enter an order reinstating a prior order, the DHS must deter-
mine: the identity of the alien; whether he or she was subject to
6 No. 18-2886
a prior removal order; and the terms on which he or she left
and reentered the country).
In this case, the immigration officer obtained the 2005 Order
under which Villa was previously removed, determined that
Villa was the same person who had been removed under that
Order, and then determined that Villa had unlawfully reen-
tered the United States. Indeed, Villa does not dispute that he
is the alien referenced in the 2005 Order, that he was purport-
edly subject to removal under the 2005 Order, that he previ-
ously was removed under that Order, and that he reentered
without a lawful basis. He contends, nevertheless, that the 2005
Order was void from its inception, and the immigration judge
had no jurisdiction to enter it. He argues, in essence, that the
2005 Order may not be reinstated because there is no valid
prior order to reinstate.
In order to avoid the jurisdictional bar that is patent in the
statute, Villa argues that he “does not seek review of an
unreviewable removal order,” but rather requests that “the
Court recognize no valid order ever existed.” Brief of Peti-
tioner, at 6. He suggests that “there is no underlying removal
order because removal proceedings under 8 U.S.C. § 1229a
never took place.” Brief of Petitioner at 7. See also Reply Brief
at 2 (where Villa contends that he “is not requesting the Court
review an old order on its merits,” but instead “challenges
whether there is actually a prior removal order against him.”).
Villa is not claiming that the 2005 Order literally does not exist
but rather is arguing that it is not valid and never was valid
No. 18-2886 7
because of defects in the Notice to Appear.1 This circular
argument asks the court to bypass the jurisdictional bar on
reviewing underlying orders in reinstatement proceedings by
reviewing the underlying order and finding it void. We decline
this invitation.
Villa relies on this court’s opinion in Mejia Galindo v.
Sessions, 897 F.3d 894 (7th Cir. 2018), for the proposition that,
even in a case where we lack jurisdiction to review an order of
removal, we have the power to unwind a legal error that
created the jurisdictional defect. Villa overreads Mejia Galindo,
which is distinguishable on a number of grounds. In that case,
an immigration judge found that Mejia Galindo was not
removable and declined to enter an order of removal. The
government appealed to the Board of Immigration Appeals
(“BIA” or “Board”), which reversed and found that Mejia
Galindo was removable. But instead of remanding for the
immigration judge to enter an order of removal, the BIA
purported to enter an order of removal on its own authority.
Mejia Galindo then timely petitioned this court for review of
the BIA’s order. 897 F.3d at 895–96. We noted our jurisdiction
to review final orders of removal under 8 U.S.C. § 1252(a)(1),
but we found that the Board lacked any statutory or regulatory
authority to enter a removal order in the first instance. Because
1
Villa attached the purportedly void 2005 Order to his opening brief. He
does not dispute that an immigration judge held a hearing and entered an
order; he asserts instead that defects in the Notice to Appear deprived the
immigration judge of jurisdiction to hold the hearing and enter the order,
rendering the order void from its inception, a conclusion which is
impossible to reach without reviewing the 2005 Order and the proceedings
that led to its entry.
8 No. 18-2886
there was no final order of removal, we lacked jurisdiction to
review the merits of the BIA’s order. 897 F.3d at 897–98. But we
also found that our jurisdiction to consider our own jurisdic-
tion included the authority to vacate the BIA’s decision and
remand the matter to address the legal error that gave rise to
the jurisdictional limitation in the first place. 897 F.3d at 898.
Without that authority, Mejia Galindo would have been
without any remedy in the face of the BIA’s ultra vires act.
Unlike Villa, Mejia Galindo filed his petition in a timely
manner soon after the Board entered its ultra vires order. Villa
waited thirteen years to challenge the 2005 Order, well beyond
the time allotted. See 8 U.S.C. § 1252(b)(1) (“The petition for
review must be filed not later than 30 days after the date of the
final order of removal.”). Unlike Villa, Mejia Galindo did not
unlawfully return to the United States after having been
removed. Villa did return after previously having been
removed, and now brings his challenge in the context of a
reinstatement proceeding, where our jurisdiction is statutorily
limited to review of the circumstances of reinstatement. Unlike
Mejia Galindo, Villa did have other remedies available to him,
remedies that he bypassed by not pursuing them in a timely
fashion in 2005 when the order of removal was first entered.
Villa’s case is in this posture because of his unlawful reentry,
not because of circumstances beyond his control, as happened
to Mejia Galindo. Our reasoning in Mejia Galindo has no
application to the circumstances here.
Because we have no jurisdiction to review the underlying
order in reinstatement proceedings, we must dismiss this
appeal. We noted above that Villa’s challenge to the underly-
ing 2005 Order was also untimely under 8 U.S.C. § 1252(b)(1).
No. 18-2886 9
His claim is also precluded by his failure to exhaust adminis-
trative remedies under 8 U.S.C. § 1252(d)(1). For the sake of
completeness, we will briefly address the applicability of
Pereira to the circumstances here.
In Pereira, the Supreme Court considered the narrow
question of whether a notice to appear that does not specify the
“time and place at which the proceedings will be held,” as
required by § 1229(a)(1)(G)(i), triggers the stop-time rule. 138
S. Ct. at 2113. The Attorney General has discretion to cancel
removal and adjust the status of certain nonpermanent
residents who meet enumerated criteria, including a require-
ment to be continually physically present in the United States
for not less than ten years immediately preceding the date of
an application for cancellation of removal. Under the stop-time
rule, the period of continuous presence is deemed to end when
an alien is served with a notice to appear “under section
1229(a)” Pereira, 138 S. Ct. at 2110; 8 U.S.C. §§ 1229(a) (setting
forth the form for a notice to appear); 1229a (governing
removal proceedings); 1229b (governing cancellation of
removal and adjustment of status). Because section 1229(a)
requires a notice to appear to list the date and time for the first
hearing, the Court concluded that a notice to appear that did
not contain the date and time information is not a “notice to
appear under section 1229(a)” and so does not trigger the stop-
time rule under 8 U.S.C. § 1229b(d)(1)(A). 138 S. Ct. at 2113–14
(emphasis added).
Villa seeks to employ Pereira’s narrow holding from the
context of the stop-time rule more broadly to assert that,
because his Notice to Appear did not list the date and time of
his hearing, his Notice to Appear did not vest the immigration
10 No. 18-2886
court with jurisdiction over his case, and any order entered
was therefore void. Many years before the Court decided
Pereira, we rejected the contention that the failure to include
the date and time in a notice to appear deprives the immigra-
tion court of jurisdiction so long as the immigration court
serves notice of the time and date on the person named in the
notice to appear. Dababneh v. Gonzales, 471 F.3d 806, 809 (7th
Cir. 2006) (that the government fulfilled its obligations under
8 U.S.C. § 1229 in two documents rather than one did not
deprive the immigration judge of jurisdiction to initiate
removal proceedings). Following Pereira, the BIA rejected the
very argument raised here by Villa in Matter of Bermudez-Cota,
27 I. & N. Dec. 441 (BIA 2018). Also after the decision in Pereira,
the Second, Sixth and Ninth Circuits have concluded that
jurisdiction vests with the immigration court where the
mandatory information about the time and date of the hearing
is absent from the Notice to Appear but is provided later in a
notice of hearing issued by the immigration court. Banegas
Gomez v. Barr, — F.3d —, 2019 WL 1768914, *6–*8 (2d Cir.
Apr. 23, 2019); Hernandez-Perez v. Whitaker, 911 F.3d 305, 314–15
(6th Cir. 2018); Karingithi v. Whitaker, 913 F.3d 1158, 1160–61
(9th Cir. 2019). Together with Dababneh, these cases suggest
that the immigration judge did have jurisdiction over Villa’s
2005 proceedings, that the entry of the 2005 Order was not ultra
vires, and that the 2005 Order was therefore not void. But
because we lack jurisdiction to review the 2005 Order, we have
no occasion to reconsider Dababneh in light of Pereira, and so
we reserve that issue for a case in which it matters to the
outcome.
PETITION DISMISSED.