F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 21 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
JOSE ALEJANDRO GARCIA-
MARRUFO,
Petitioner,
v. No. 03-9516
JOHN ASHCROFT, Attorney General
of the United States,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
IMMIGRATION AND NATURALIZATION SERVICE
(INS NO. A76-004-625)
Submitted on the briefs:
David K. Link of Link Law Office, LLC, Wichita, Kansas, for Petitioner.
Emily Anne Radford, Assistant Director, and Blair T. O’Connor, Attorney,
United States Department of Justice, Civil Division, Office of Immigration
Litigation, Washington, D.C., for Respondent.
Before HARTZ , McKAY , and PORFILIO , Circuit Judges.
HARTZ , Circuit Judge.
Petitioner Jose Alejandro Garcia-Marrufo appeals an order issued by the
Immigration and Naturalization Service (INS) 1 reinstating a prior order of
removal. He seeks to challenge the original order of removal. In addition, he
argues that the reinstatement procedure denied him due process and that
irregularities in the record require a remand to the agency. We hold that we lack
jurisdiction to review the underlying order of removal. As for the remaining
issues, we exercise jurisdiction under § 242 of the Immigration and Nationality
Act (INA), 8 U.S.C. § 1252, to review the reinstatement order, and affirm. 2
I. BACKGROUND
Petitioner, a Mexican citizen, entered the United States in May 1993. On
November 22, 1995, he pleaded guilty to burglary and theft in Kansas state court.
He was sentenced to 24 months’ probation, with an underlying prison term of 12
months for the burglary offense and 6 months for the theft offense, the sentences
to run concurrently. On May 1, 1998, the INS initiated expedited removal
proceedings against Petitioner, contending that he had been convicted of an
1
On March 1, 2003, the INS ceased to exist as an agency within the
Department of Justice. Its enforcement functions were transferred to the
Department of Homeland Security. See Homeland Security Act of 2002, Pub. L.
No. 107-296, 116 Stat. 2135 (2002). Because the events at issue here predate that
reorganization, we continue to refer to the INS in this opinion.
2
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
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aggravated felony as defined in INA §101(a)(43), 8 U.S.C. § 1101(a)(43)(G)
(including in definition of “aggravated felony” those burglary offenses for which
the term of imprisonment was at least one year). He was removed on May 12,
1998.
On June 15, 1998, Petitioner illegally reentered the United States. He
married a United States citizen on April 2, 2001, and then filed an application for
adjustment of status under INA § 245(i), 8 U.S.C. §1255(i), seeking to become a
lawful permanent resident in light of his marriage. His application included an
application for waiver of the effect of his state-court conviction under INA
§ 212(h), 8 U.S.C. § 1182(h) (INS Form 1-601). On January 22, 2003, during an
interview related to his application for adjustment of status, Petitioner admitted
that he was a citizen of Mexico, that he had been previously deported, and that he
had reentered the United States without seeking permission from the Attorney
General. Based on these admissions, the INS on that same day served Petitioner
with notice that the Attorney General intended to reinstate the prior removal
order. The original removal order was thereafter reinstated.
Petitioner’s application for adjustment of status was denied on February 13,
2003. On September 18, 2003, a Kansas state district court set aside the burglary
conviction that was the basis for his original deportation. His INS application for
waiver of the effect of his state-court conviction apparently is still pending.
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On appeal Petitioner argues that (1) the 1998 order of removal was
unlawful because his state conviction was not an aggravated felony; (2) this
matter must be remanded to the INS for further proceedings because the
conviction providing the basis for the original order of removal has been set
aside; (3) the reinstatement procedure set forth in INA § 241(a)(5), 8 U.S.C.
§ 1231(a)(5) does not satisfy due process; and (4) irregularities in the
administrative record require a remand. We hold that we do not have jurisdiction
to consider the underlying removal order, that Petitioner has failed to demonstrate
prejudice from the alleged due process violation, and that the alleged problems
with the administrative record do not require a remand.
II. DISCUSSION
A. Jurisdiction
We have jurisdiction to review the reinstatement order under INA § 242, 8
U.S.C. § 1252. Duran-Hernandez v. Ashcroft, 348 F.3d 1158, 1162 n.3 (10th Cir.
2003). We do not, however, have jurisdiction to review the underlying
deportation order. As set forth in INA § 241(a)(5), 8 U.S.C. § 1231(a)(5), “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 . . . .” (emphasis added). Based on the plain
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language of the statute, we conclude, as have the other circuits to consider this
issue, that our jurisdiction is limited to considering whether the reinstatement
order was properly entered—we cannot consider the propriety of the underlying
removal order. See Avila-Macias v. Ashcroft, 328 F.3d 108, 115 (3d Cir. 2003);
Smith v. Ashcroft, 295 F.3d 425, 429 n.2 (4th Cir. 2002); Ojeda-Terrazas v.
Ashcroft, 290 F.3d 292, 295 (5th Cir. 2002); Gomez-Chavez v. Perryman, 308
F.3d 796, 801 (7th Cir. 2002); Briones-Sanchez v. Heinauer, 319 F.3d 324, 327
(8th Cir. 2003); Padilla v. Ashcroft, 334 F.3d 921, 924 (9th Cir. 2003).
In so holding, we reject Petitioner’s argument that United States v.
Mendoza-Lopez, 481 U.S. 828 (1987), requires review of the original order of
removal because “[a]n illegal or unconstitutional prior order of removal cannot,
within the confines of due process, provide a prerequisite for deprivation of a
fundamental liberty interest.” Aplt. Br. at 14. In Mendoza-Lopez the Supreme
Court held that “where the defects in an administrative proceeding foreclose
judicial review of that proceeding, an alternative means of obtaining judicial
review must be made available before the administrative order may be used to
establish conclusively an element of a criminal offense.” 481 U.S. at 838. Thus,
“[d]epriving an alien of the right to have the disposition in a deportation hearing
reviewed in a judicial forum requires, at a minimum, that review be made
available in any subsequent proceeding in which the result of the deportation
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proceeding is used to establish an element of a criminal offense.” Id. at 839. The
Court specifically noted, however, that this rule would “not create an opportunity
for aliens to delay deportation, since the collateral challenge we recognize . . . is
available only in criminal proceedings instituted after reentry.” Id. at n.17.
Accordingly, Mendoza-Lopez provides no help to Petitioner. See Alvarenga-
Villalobos v. Ashcroft, 271 F.3d 1169, 1173 (9th Cir. 2001).
We therefore cannot consider Petitioner’s challenge to the underlying order
of removal or his argument that the setting aside of the state conviction
eliminated any basis for the removal.
B. Due Process
Petitioner seeks reversal of the reinstatement of his order of removal
because “the reinstatement process of INA § 241(a)(5), as implemented by the
INS and applied to [him], violates procedural due process by summarily
subjecting him to removal on the basis of an evaluation by an INS agent, with no
opportunity for a hearing.” Aplt. Br. at 18. We reject the argument because
Petitioner cannot demonstrate any prejudice from the alleged due process
violation.
A prior order of removal is properly reinstated when an immigration officer
determines that (1) “the alien has been subject to a prior order of removal”; (2)
“the alien is in fact an alien who was previously removed”; and (3) “the alien
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unlawfully reentered the United States.” 8 C.F.R. § 241.8. Petitioner does not
contest that he meets these criteria. Had Petitioner been afforded additional
process, the result would have been no different—the prior order of removal
would have been reinstated. In the absence of prejudice, Petitioner is not entitled
to relief. See Duran-Hernandez, 348 F.3d at 1162-63.
C. The Administrative Record
Petitioner contends that there are irregularities in the Certified
Administrative Record which are serious enough to require a remand to the
agency for further proceedings. His opening brief, however, fails to point to any
prejudice he has suffered as a result of the alleged irregularities. There is
therefore no cause for a remand.
III. CONCLUSION
We AFFIRM the decision of the INS. We GRANT Petitioner’s Motion to
Supplement the Record with respect to his Form I-601, which should have been
part of the administrative record, but DENY the motion with respect to the state-
court records.
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