Luis Platas-Hernandez v. Loretta E. Lynch

FILED
NOT FOR PUBLICATION MAY 27 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS ENRIQUE PLATAS- No. 12-73590
HERNANDEZ, AKA Mario Flores Nava,
Agency No. A078-749-256
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 21, 2014**
Pasadena, California
Before: SCHROEDER, PREGERSON, and NGUYEN, Circuit Judges.
Luis Enrique Platas-Hernandez petitions for review of a Board of
Immigration Appeals (BIA) decision affirming the immigration judge’s (IJ) denial
of his motion to reconsider the termination of his removal proceedings to allow
*
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).
reinstatement of a prior expedited removal order. Because this decision was not a
final order, we lack jurisdiction over his petition. See 8 U.S.C. § 1252(b)(9);
Galindo-Romero v. Holder, 640 F.3d 873, 877 (9th Cir. 2011).
We do have jurisdiction over the Department of Homeland Security’s
reinstatement of Platas-Hernandez’s prior expedited removal order, which was
effectuated on November 2, 2012. 8 U.S.C. § 1252(a)(1); Ixcot v. Holder, 646
F.3d 1202, 1206 (9th Cir. 2011) (“We have jurisdiction to review final agency
orders of removal, including reinstatement orders . . . .”). Though it is unclear if
Platas-Hernandez squarely challenges this final order, construing his petition to do
so, we reject his claims on the merits. See United States v. Ullah, 976 F.2d 509,
514 (9th Cir. 1992) (citation omitted) (noting that we may review an issue not
“specifically and distinctly argued” in an opening brief when it does not prejudice
the opposing party). Applicants for nonpermanent resident cancellation of removal
under INA § 240A(b)(1) are not protected from the reach of the reinstatement
statute because the plain language of the statute bars those subject to reinstatement
from “any relief.” 8 U.S.C. § 1231(a)(5). Though there are limited exceptions to
this bar, Platas-Hernandez does not argue that he falls within one of them. Cf.
Padilla v. Ashcroft, 334 F.3d 921, 925 (9th Cir. 2003) (noting that “when Congress
intended to exempt certain groups of aliens from the sweep of the reinstatement
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statute, it knew how to do so”). Moreover, even assuming Platas-Hernandez is
correct that the Violence Against Women Reauthorization Act of 2005 (VAWRA)
extends some protection to certain aliens subject to reinstatement, he could not
benefit from such protection because he is neither a T- or U-visa applicant nor an
applicant for special rule cancellation of removal under INA § 240A(b)(2). See
Pub. L. No. 109-162, § 813(b)(2), 119 Stat. 3058 (Jan. 5, 2006). “[W]hen a statute
designates certain persons, things, or manners of operation, all omissions should be
understood as exclusions.’” Silvers v. Sony Pictures Inc., 402 F.3d 881, 885 (9th
Cir. 2005) (en banc) (quoting Boudette v. Barnette, 923 F.2d 754, 756-57 (9th Cir.
1991)). Thus, his argument that INA § 240A(b)(1) cancellation applicants should
be read in as beneficiaries of VAWRA by analogy must fail.
Platas-Hernandez raises a variety of other arguments, all of which we lack
jurisdiction to consider. See Garcia de Rincon v. Dep’t of Homeland Sec., 539
F.3d 1133, 1137 (9th Cir. 2008).
PETITION DENIED IN PART, DISMISSED IN PART.
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FILED
Platas-Hernandez v. Lynch, No. 12-73590 MAY 27 2015
PREGERSON, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
In 1997, Luis Enrique Platas-Hernandez came to the United States to escape
gang violence in Mexico. He was 22 years old. He has lived in the United States
for the past 18 years. He has built a life here. He enrolled in English classes,
where he met Mercy, his partner and the mother of their two United States citizen
sons, Luis (age 9) and Oswaldo (age 5). He works two jobs to support his family.
Platas-Hernandez is an active and well-liked member of his community, a
respected employee, and an excellent parent.
In December 1999, Platas-Hernandez traveled to Mexico to care for his
ailing father. In October 2000, while returning to the United States, he was
detained at the border and removed under an expedited removal process. That
process did not provide for a hearing. Three days after being removed, Platas-
Hernandez returned to the United States.
In January 2011, Immigration and Customs Enforcement took Platas-
Hernandez into custody after he was arrested for driving under the influence.
Platas-Hernandez applied for cancellation of removal under INA § 240A(b)(1)
based on his ten years of continuous residency in the United States and hardship to
his two United States citizen children. Despite the equities in this case, his
application for cancellation of removal was not considered. Instead, the
government reinstated his prior 2000 order of removal under the reinstatement
statute, 8 U.S.C. § 1231(a)(5). Once again, Platas-Hernandez was removed to
Mexico without a hearing and without the opportunity to apply for relief.
Platas-Hernandez’s case is yet another example of the cruelty and harshness
of our immigration laws and the suffering inflicted on innocent family members
and children. When a parent, such as Platas-Hernandez, is denied all relief from
removal and is banished from the country, in many cases, his children will also
suffer a form of banishment because there is a high probability that economic
circumstances and strong family ties will compel the children to leave the country
of their birth and join their parents in a hard environment. Should this come to
pass, our country will be deprived of the talents of these children and they will be
denied a productive future in the country of their birth. This de facto banishment
also denies the children their constitutionally protected right to remain in the
country of their birth with their family intact, in violation of due process. See
Moore v. City of E. Cleveland, 431 U.S. 494, 503-05 (1977) (plurality opinion)
(“Our decisions establish that the Constitution protects the sanctity of the family
precisely because the institution of the family is deeply rooted in this Nation’s
history and tradition.”); Stanley v. Illinois, 405 U.S. 645, 651 (1972) (“The
integrity of the family unit has found protection in the Due Process Clause of the
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Fourteenth Amendment”).
I decline to be a party to such an unkind result. Therefore, I respectfully
dissent.
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