F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 14, 2006
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
D A G O BER TO IB AR RA ,
Petitioner,
v. No. 05-9589
(No. A-95-590-416)
ALBERTO R. GONZALES, Attorney (Petition for Review)
General,
Respondent.
OR D ER AND JUDGM ENT *
Before HA RTZ, A ND ER SO N, and TYM KOVICH, Circuit Judges.
Dagoberto Ibarra, a native and citizen of M exico, petitions for review of
the reinstatement of a prior order of deportation under Immigration and
Nationality Act (INA) § 241(a)(5), 8 U.S.C. § 1231(a)(5). W e have jurisdiction
to review the reinstatement order under INA § 242, 8 U.S.C. § 1252, see
*
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. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
Duran-H ernandez v. Ashcroft, 348 F.3d 1158, 1162 n.3 (10th Cir. 2003), and w e
D EN Y the petition for review .
M r. Ibarra has an extensive history of entering illegally and being expelled
from the United States. As is relevant to this appeal, he was deported on June 23,
1978. He reentered illegally a month later, was imprisoned for 179 days, and was
allowed to return to M exico under voluntary departure w ith safeguards in January
1979. M r. Ibarra reentered at least twice more, in 1979 and 1980. The record is
not clear, but it appears that on each occasion he w as afforded voluntary
departure upon serving prison time for illegal reentry. After his 1980
imprisonment, M r. Ibarra apparently remained in M exico until M ay 28, 1999,
when he again illegally entered this country.
M r. Ibarra sought to legalize his status by filing an application for
adjustment of status and a I-212 application for permission to reapply for
admission into the United States. Adjustment of status was denied on the ground
that M r. Ibarra was subject to reinstatement of the 1978 deportation order. The
government then reinstated the 1978 deportation order and ordered M r. Ibarra
removed.
Section 1231(a)(5) provides:
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
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under this chapter, and the alien shall be removed under the prior
order at any time after the reentry.
M r. Ibarra does not contest any of the three conditions for reinstating a
deportation order. See Duran-Hernandez, 348 F.3d at 1162-63 (removal order
may be reinstated upon showing that alien (1) w as subject to prior removal order,
(2) is the same alien who was removed, and (3) illegally reentered this country).
Instead, he argues that § 1231(a)(5) is not applicable to him because his most
recent departures from this country were voluntary departures rather than
deportations. This issue is one of statutory construction, so it is reviewed de
novo. Robbins v. Chronister, 435 F.3d 1238, 1240 (10th Cir. 2006) (en banc).
Section 1231(a)(5) applies to aliens who reenter after (1) having been
removed, or (2) having departed voluntarily, under an order of removal.
M r. Ibarra essentially contends that the statute applies only to the alien’s most
recent departure. He distinguishes his voluntary departures from self-removal,
suggesting that § 1231(a)(5) “appl[ies] only to individuals whose departures
would be considered pursuant to an order of removal rather than those whose
departures would be considered under a grant of voluntary departure.” A plt. Br.
at 14.
W e disagree. M r. Ibarra is an alien who reentered this country illegally
after having been deported, and therefore § 1231(a)(5) plainly applies to him.
M r. Ibarra does not cite, and we have not found, any authority indicating that his
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subsequent departures vitiated the 1978 deportation order. Because M r. Ibarra
falls under the first category of aliens subject to reinstatement under § 1231(a)(5),
we need not analyze whether his voluntary departures are distinguishable from a
situation in which an alien “departed voluntarily, under an order of removal.”
M r. Ibarra generally concedes that applying § 1231(a)(5) to him is not
impermissibly retroactive. See Fernandez-Vargas v. Gonzales, No. 04-1376, __
S. Ct. __, 2006 W L 1698970, at *8-9 (U.S. June 22, 2006) (§ 1231(a)(5) is not
impermissibly retroactive even when an alien reentered the U nited States before
the statute’s effective date). But he sets forth an alternate due process argument
that, because his extended absence from the United States would satisfy the 10-
year-absence requirement for admissibility under INA § 212(a)(9)(C),
8 U.S.C. § 1182(a)(9)(C), applying § 1231(a)(5) to him would unconstitutionally
deny him the benefits of the voluntary departures and impose on him “the
disabilities associated with an order of deportation.” Aplt. Br. at 25. Again,
however, his subsequent voluntary departures did not negate his 1978 order of
deportation or otherw ise relieve M r. Ibarra of any disabilities associated with it.
Applying § 1231(a)(5) to M r. Ibarra is not impermissibly retroactive or otherwise
a violation of due process.
Finally, M r. Ibarra argues that he is admissible because he stayed out of the
United States for more than the 10 years required by § 1182(a)(9)(C)(ii). But this
provision requires an alien to obtain the A ttorney General’s permission to return
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before the alien attempts to enter this country, and M r. Ibarra did not seek such
permission. In any event, the reinstatement of the deportation order under
§ 1231(a)(5) renders M r. Ibarra ineligible for adjustment of status or I-212 relief.
See 8 U.S.C. § 1231(a)(5); Berrum-Garcia v. Com fort, 390 F.3d 1158, 1163 (10th
Cir. 2004).
This court’s stay orders dated October 26, 2005, and November 30, 2005,
are V A CA TED , and the petition for review is DENIED.
Entered for the Court
Harris L Hartz
Circuit Judge
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