Garcia-Villeda v. Mukasey

07-0283-ag
Garcia-Villeda v. Mukasey

1 UNITED STATES COURT OF APPEALS
2
3 FOR THE SECOND CIRCUIT
4
5 -------------
6
7 August Term 2007
8
9 Argued: March 25, 2008 Decided: July 8, 2008
10
11 Docket No. 07-0283-ag
12
13 --------------------------------------------------------X
14
15 Horacio H. Garcia-Villeda,
16
17 Petitioner,
18
19 - against -
20
21 Michael B. Mukasey, ∗ Attorney General of the United States,
22
23 Respondent.
24
25 --------------------------------------------------------X
26
27 Before: JACOBS, Chief Judge, and FEINBERG and HALL, Circuit
28 Judges.
29
30 Petitioner Horacio H. Garcia-Villeda seeks review of a decision
31 of the U.S. Immigration and Customs Enforcement reinstating a prior
32 order of deportation for illegal entry. We deny petitioner’s request
33 for vacatur of the reinstatement order and hold that (1) 8 C.F.R. §
34 241.8 constitutes a valid interpretation of the reinstatement of
35 removal statute, 8 U.S.C. § 1231(a)(5); (2) petitioner failed to show
36 prejudice resulting from the reinstatement of his prior deportation
37 order; (3) the reinstatement of removal statute precludes any
38 collateral review of the underlying deportation proceeding; and (4)
39 reinstatement of the prior deportation order without prior
40 adjudication of petitioner’s pending petitions for Waiver of Grounds
41 of Excludability and for Permission to Reapply for Admission was
42 proper, because, as an illegal reentrant, petitioner was inegilible

∗
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Michael B.
Mukasey is substituted for Alberto Gonzales as Respondent.
1
 1 for any discretionary relief under the immigration laws and could
2 only apply for permission to reapply for admission after having
3 resided outside the U.S. for a minimum of ten years.
4
5 MICHAEL P. DiRAIMONDO, DiRaimondo & Masi, LLP, Melville, NY, for
6 Petitioner.
7
8 SCOTT REMPELL, Trial Attorney, Office of Immigration Litigation,
9 JEFFREY S. BUCHOLTZ, Acting Assistant Attorney General, Civil
10 Division, LINDA S. WERNERY, Assistant Director, U.S. Department
11 of Justice, Washington, DC, for Respondent.
12
13
14 FEINBERG, Circuit Judge:

15 Petitioner Horacio H. Garcia-Villeda seeks review of a December

16 28, 2006 order of the Department of Homeland Security (“DHS”),

17 Immigration and Customs Enforcement (“ICE”), reinstating a prior

18 order of deportation for illegal entry, entered against petitioner in

19 August 1996. The issues before us are whether elimination of the

20 requirement of a hearing before an immigration judge, pursuant to 8

21 C.F.R. § 241.8 (2001), is consistent with the reinstatement of

22 removal statute, 8 U.S.C. § 1231(a)(5); whether the reinstatement of

23 removal procedure set forth in 8 C.F.R. § 241.8, both as applied in

24 this case and on its face, comports with the Due Process Clause of

25 the Fifth Amendment; whether the original deportation order could be

26 constitutionally reinstated despite allegations of due process

27 violations in the original proceeding; and whether the ICE properly

28 reinstated the underlying deportation order without first

29 adjudicating petitioner’s pending applications for Waiver of Grounds

30 of Excludability and for Permission to Reapply for Admission.

31
2
 1 I. BACKGROUND

2 Petitioner, a native and citizen of Honduras, was apprehended

3 for entering the United States (hereafter “U.S.”) without inspection

4 in August 1996. On August 27, 1996, he was ordered deported by an

5 immigration judge, a ruling he did not appeal to the Board of

6 Immigration Appeals (“BIA”) or contest in a federal court. A warrant

7 for removal was issued, and petitioner was deported on September 5,

8 1996.

9 Petitioner reentered the U.S. illegally in May 1997. In June

10 1998, he married Martha Vienna Paz, a U.S. citizen, with whom he now

11 has two children.

12 On December 28, 2006, petitioner appeared for an interview

13 before an ICE officer to discuss his immigration status. During the

14 interview, petitioner admitted both his illegal reentry into the U.S.

15 and his earlier deportation in September 1996. On the same day, after

16 the interviewing officer verified petitioner’s statements and his

17 identity, the Acting Supervisory Deportation Officer reinstated the

18 prior deportation order. Since then, petitioner has been detained in

19 Elizabeth, New Jersey.

20 In January 2007, petitioner was interviewed to determine whether

21 he had a reasonable fear of persecution in his country of origin,

22 which would entitle him to withholding of removal and protection

23 under the Convention Against Torture. After a hearing, in March 2007,

3
 1 an immigration judge ruled against petitioner. The BIA affirmed in

2 July 2007, and petitioner did not seek review of the BIA’s decision.

3 Thereafter, petitioner filed a timely petition for review of the

4 December 28, 2006 reinstatement of removal order.

5

6 II. DISCUSSION

7 In 1996, as part of a sweeping overhaul of the immigration laws,

8 Congress enacted the Illegal Immigration Reform and Immigrant

9 Responsibility Act, Pub. L. No. 104-208, div. C, 110 Stat. 3009

10 (“IIRIRA”). The IIRIRA, among other things, repealed § 242(f) of the

11 Immigration and Nationality Act (“INA”), 8 U.S.C. § 1252(f) (repealed

12 1996), and adopted INA § 241(a)(5), 8 U.S.C. § 1231(a)(5) (hereafter

13 “INA § 241(a)(5)” or the “reinstatement of removal statute”). 1 This

14 section became effective on April 1, 1997.

15 In 1997, the Attorney General aligned the implementing

16 regulations with the new statutory language, by replacing 8 C.F.R. §

17 242.23(b) (repealed 1997) –- which required a reinstatement hearing

18 before an immigration judge –- with 8 C.F.R. § 241.8, which changes

1
INA § 241(a)(5), 8 U.S.C. § 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 under this chapter,
and the alien shall be removed under the prior order at any
time after the reentry.

4
 1 the hearing requirement. 2 Under 8 C.F.R. § 241.8, once the immigration

2 officer has established that the alien is indeed an illegal reentrant

3 subject to the reinstatement of removal statute, the officer must

4 order the alien “removed under the previous order of exclusion,

5 deportation, or removal in accordance with section 241(a)(5) of the

6 [INA].” 8 C.F.R. § 241.8(c).

7 Petitioner argues that the regulation is an impermissible

8 construction of the statute, because it contravenes the explicit

9 mandate of INA § 240, 8 U.S.C. § 1229a(a)(1), that removal

10 proceedings be conducted before an immigration judge. Petitioner also

11 challenges the regulation on constitutional grounds, alleging that,

12 both on its face and as applied in his case, it violates the Due

13 Process Clause of the Fifth Amendment. In addition, petitioner claims

14 that the underlying deportation order itself deprived him of due

15 process and thus was not subject to reinstatement. Finally,

16 petitioner contends that, even if the regulation is valid, the ICE

17 was precluded from reinstating the earlier order without first

2
8 C.F.R. § 241.8 states in pertinent part:

(a) Applicability. An alien who illegally reenters the United
States after having been removed, or having departed
voluntarily, while under an order of exclusion, deportation,
or removal shall be removed from the United States by
reinstating the prior order. The alien has no right to a
hearing before an immigration judge in such circumstances. In
establishing whether an alien is subject to this section, the
immigration officer shall determine the following: (1)
Whether the alien has been subject to a prior order of
removal. . . . (2) The identity of the alien, i.e., whether
the alien is in fact an alien who was previously removed . .
. . [and] (3) Whether the alien unlawfully reentered the
United States.

5
 1 adjudicating petitioner’s then-pending petitions for Waiver of

2 Grounds of Excludability and for Permission to Reapply for Admission,

3 which, he believes, would have been successful. We address each

4 argument in turn.

5

6 A. Challenge to the Validity of 8 C.F.R. § 241.8.

7 Section 240 of the INA, entitled “Removal proceedings,” requires

8 that “[a]n immigration judge shall conduct proceedings for deciding

9 the inadmissibility or deportability of an alien.” 8 U.S.C. §

10 1229a(a)(1). The section further provides:

11 Unless otherwise specified in this chapter, a proceeding
12 under this section shall be the sole and exclusive
13 procedure for determining whether an alien may be
14 admitted to the United States or, if the alien has been
15 so admitted, removed from the United States.
16
17 8 U.S.C. § 1229a(a)(3) (emphasis added). Petitioner claims that this

18 language clearly expresses congressional intent to extend the

19 requirement of a hearing before an immigration judge to all

20 proceedings –- including reinstatement of prior deportation orders –-

21 that result in removal of an alien from the U.S. Petitioner argues

22 that, since Congress has not specifically exempted reinstatement

23 proceedings from the hearing requirement, and since a hearing was

24 provided to aliens subject to reinstatement for over four decades

25 under the prior statute and the implementing regulations, the

26 procedure prescribed by INA § 240 is the “sole and exclusive

27 procedure for determining” whether an earlier deportation order

6
 1 should be reinstated. In petitioner’s view, the implementing

2 regulation that confers upon immigration officers, not judges, the

3 authority to reinstate without a hearing a prior deportation order

4 against an illegal reentrant is in direct conflict with INA § 240 and

5 thus invalid.

6 To assess the validity of the regulation at issue, we apply the

7 two-prong test enunciated in Chevron, U.S.A., Inc. v. Natural Res.

8 Def. Council, Inc., 467 U.S. 837, 842-43 (1984). Under the first

9 prong of Chevron, we determine “whether Congress has directly spoken

10 to the precise question at issue,” id. at 842, i.e., here, whether a

11 prior removal order may be reinstated without a full hearing before

12 an immigration judge. “If the intent of Congress is clear, that is

13 the end of the matter . . ..” Id. However, if the statute is found to

14 be ambiguous, the question for us under the second prong “is whether

15 the agency’s answer is based on a permissible construction of the

16 statute.” Id. at 843.

17 The validity of the regulation implementing the reinstatement of

18 removal statute is a matter of first impression in this circuit, but

19 we are not without guidance on the question. Every other circuit that

20 has considered the issue has upheld the regulation as a valid

21 interpretation of the INA. See Lorenzo v. Mukasey, 508 F.3d 1278,

22 1283-84 (10th Cir. 2007); Morales-Izquierdo v. Gonzales, 486 F.3d

23 484, 489-95 (9th Cir. 2007) (en banc); De Sandoval v. U.S. Att’y

24 Gen., 440 F.3d 1276, 1280-83 (11th Cir. 2006); Ochoa-Carrillo v.

7
 1 Gonzales, 437 F.3d 842, 846 (8th Cir. 2006); Lattab v. Ashcroft, 384

2 F.3d 8, 17-20 (1st Cir. 2004); see also Tilley v. Chertoff, 144 F.

3 App’x 536, 539-40 (6th Cir. Aug. 15, 2005) (unpublished).

4 (1) Chevron Step One. Petitioner correctly points out that INA §

5 241(a)(5) does not specify the procedures to be followed by the

6 Attorney General in reinstating an earlier deportation order.

7 However, petitioner errs in assuming that, because Congress did not

8 explicitly specify those procedures, it intended that reinstatement

9 proceedings be governed by INA § 240.

10 Petitioner’s primary reliance on the direction of INA § 240 that

11 a full-fledged hearing before an immigration judge “be the sole and

12 exclusive procedure for determining whether an alien” will be

13 deported from the U.S., 8 U.S.C. § 1229a(a)(3), 3 is misplaced. This

14 provision requires a formal hearing in removal proceedings that

15 concern only aliens already admitted to the U.S. Petitioner has twice

16 entered the U.S. illegally, but has never been “admitted” to this

17 country. In any event, such a hearing is not “the sole and exclusive

18 procedure” for removability determinations, when Congress has

19 “otherwise specified.” For reinstatement, Congress did in fact

20 specify otherwise: in INA § 241(a)(5), it authorized the Attorney

21 General to reinstate prior removal orders based on the simple finding

22 that an alien entered the U.S. illegally after having been deported. 4

3
The language is quoted in full supra at p. 6.
4
See supra note 1.
8
 1 In addition, the placement of the reinstatement of removal

2 statute in INA § 241, under the title “Detention and removal of

3 aliens ordered removed,” separate from INA § 240, which is entitled

4 “Removal proceedings,” indicates “a congressional intention to treat

5 reinstatement determinations differently from first-instance

6 determinations of removability.” Lattab, 384 F.3d at 18 (citing

7 Alexander v. Sandoval, 532 U.S. 275, 288-91 (2001)). As the Ninth

8 Circuit sitting en banc put it, it is unlikely that “Congress would

9 have bothered with the detailed provisions of INA § 241 if it

10 intended to give an alien subject to reinstatement of a prior removal

11 order exactly the same rights and procedural protections as an alien

12 facing removal for the first time.” Morales-Izquierdo, 486 F.3d at

13 491. It is, accordingly, fair for us to infer that the reinstatement

14 of removal statute was introduced as an alternative to the otherwise

15 applicable procedure mandated by INA § 240 for first instance

16 determinations of removability.

17 Our finding that INA § 240’s requirement of a comprehensive

18 hearing before an immigration judge does not apply to illegal

19 reentrants is consistent with the legislative history of the portion

20 of the IIRIRA dealing with reinstatement of a removal order. That

21 history evinces unequivocal congressional intent to rectify the

22 defects of the pre-IIRIRA procedures for reinstatement of removal

23 orders and “make the removal of illegal reentrants more expeditious.”

24 Lattab, 384 F.3d at 20; see also H.R. Rep. No. 104-469(I), at 13

9
 1 (1996) (explaining that if “[a]liens who are ordered removed . . .

2 seek reentry they are subject to immediate removal under the prior

3 order” (emphasis added)); id. at 107 (characterizing the removal

4 procedures then in effect as “cumbersome and duplicative” and

5 expressing frustration because the “[r]emoval of aliens who enter the

6 United States illegally, even those who are ordered deported after a

7 full due process hearing, is an all-too-rare event”). Congress was

8 concerned with the inefficiencies of the previous scheme and sought

9 to modernize it by narrowing the range of defenses available to

10 recidivist illegal aliens and, most importantly, by eliminating any

11 duplication between removal and reinstatement proceedings. It is

12 clear that Congress enacted INA § 241(a)(5) to effect a “substantive

13 change” in the prior regime. See 62 Fed. Reg. 10312, 10326 (Mar. 6,

14 1997). Quite simply, “Congress replaced [the] reinstatement provision

15 with one that toed a harder line . . ..” Fernandez-Vargas v.

16 Gonzales, 548 U.S. 30, 34 (2006).

17 We cannot nullify the unambiguous intent of Congress to

18 streamline the reinstatement process and distinguish it from removal

19 proceedings under INA § 240. “There is a presumption against

20 construing a statute as containing superfluous or meaningless words

21 or giving it a construction that would render it ineffective.” United

22 States v. Blasius, 397 F.2d 203, 207 n.9 (2d Cir. 1968). Petitioner

23 urges us to do just that, i.e., render INA § 241(a)(5) superfluous,

24 by reinventing reinstatement of prior removal orders as a sub-

10
 1 category of removal proceedings subject to the hearing requirement

2 under INA § 240. The only way to bestow meaning on both provisions is

3 to conclude that Congress intended to exempt reinstatement of removal

4 from the procedural requirements of INA § 240.

5 Concluding that INA § 240 is inapplicable here does not end our

6 inquiry of “whether Congress has directly spoken to the precise

7 question at issue,” Chevron, 467 U.S. at 842, i.e., whether Congress

8 explicitly empowered the executive branch to design as summary a

9 procedure for reinstatement as the one set forth in 8 C.F.R. § 241.8.

10 Although the legislative history and the reinstatement of removal

11 statute itself clearly reflect general congressional intent that a

12 simplified procedure be employed for the swift removal of illegal

13 reentrants, the statutory scheme “neither explicates nor endorses any

14 particular procedures for reinstating removal orders.” Lattab, 384

15 F.3d at 19 (also noting that the legislative history “does not

16 address procedural questions with either clarity or specificity”).

17 Like most of the circuits that have decided the issue before us, we

18 conclude that INA §§ 240 and 241(a)(5) “are at best ambiguous

19 regarding the procedures applicable to aliens who reenter the United

20 States in violation of an existing removal order.” De Sandoval, 440

21 F.3d at 1281; see also Lorenzo, 508 F.3d at 1284; Lattab, 384 F.3d at

22 19. We, therefore, proceed with the second step of our analysis.

23 (2) Chevron Step Two. In examining the permissibility of 8

24 C.F.R. § 241.8, we are heedful of the Supreme Court’s direction that

11
 1 the reasonable construction of a statutory provision be affirmed,

2 even if it is not the one “the court would have reached if the

3 question initially had arisen in a judicial proceeding.” Chevron, 467

4 U.S. at 843 n.11.

5 We would surely be hard-pressed to conclude that the Attorney

6 General’s implementation of the reinstatement of removal statute is

7 impermissible. First, the text of the reinstatement of removal

8 statute itself “assumes the use of summary, rather than judicial,

9 proceedings.” Lorenzo, 508 F.3d at 1283. The inquiry in a

10 reinstatement proceeding is limited to whether the “alien has

11 reentered the United States illegally after having been removed.” 8

12 U.S.C. § 1231(a)(5). The summary procedure set forth in 8 C.F.R. §

13 241.8 is, therefore, “quite appropriate when the only issues to be

14 determined are those establishing the agency’s right to proceed under

15 [INA] § 241(a)(5) –- the alien’s identity, the existence of a prior

16 removal order, and whether the alien has unlawfully reentered.”

17 Alvarez-Portillo v. Ashcroft, 280 F.3d 858, 867 (8th Cir. 2002). This

18 bare investigation “can be performed like any other ministerial

19 enforcement action” by an immigration officer, in lieu of an

20 immigration judge. Morales-Izquierdo, 486 F.3d at 491.

21 Furthermore, as we discuss below in parts II.C and II.D of the

22 opinion, illegal reentrants are now categorically declared ineligible

23 for any relief from removal and are barred from seeking any

24 collateral review of the reinstated order. This is a significant

12
 1 change from the previous regime and further simplifies the inquiry.

2 Compare 8 U.S.C. § 1231(a)(5) with 8 U.S.C. § 1252(f) (repealed

3 1996). “[T]he elimination of any exogenous defense to reinstatement

4 significantly narrows the range of issues to be adjudicated, thereby

5 limiting the value of additional procedures.” Lattab, 384 F.3d at 20.

6 The regulation is, therefore, “entirely consistent,” id, with

7 the IIRIRA’s stated purpose to “enable . . . the prompt exclusion or

8 removal of those who are not . . . entitled” to admission. See H.R.

9 Rep. No. 104-469(I), at 111. Deference to the Attorney General’s

10 interpretation is even more imperative “in the immigration context

11 where officials ‘exercise especially sensitive political functions

12 that implicate questions of foreign relations.’” INS v. Aguirre-

13 Aguirre, 526 U.S. 415, 425 (1999) (quoting INS v. Abudu, 485 U.S. 94,

14 110 (1988)). We, like our sister circuits, 5 have “little difficulty”

15 in deferring to the government’s reasonable interpretation of INA §

16 241(a)(5). Lattab, 384 F.3d at 20.

17 Invoking the doctrine of constitutional avoidance, petitioner

18 invites us to find the regulation an impermissible interpretation of

19 the statute. The doctrine requires that when given a choice between

20 “two plausible statutory constructions,” we avoid adopting the one

5
With the exception of the Ninth Circuit, all other circuits that
have addressed the validity of 8 C.F.R. § 241.8 have resolved the issue on
the second step of Chevron, upholding the regulation as a permissible
construction of the reinstatement of removal statute. See Lorenzo, 508
F.3d at 1283; De Sandoval, 440 F.3d at 1283; Ochoa-Carillo, 437 F.3d at
846; Lattab, 384 F.3d at 20. The Sixth Circuit also resolved the issue on
the first step of Chevron in an unpublished summary order. See Tilley, 144
F. App’x at 540.
13
 1 that “would raise a multitude of constitutional problems.” Clark v.

2 Martinez, 543 U.S. 371, 380-81 (2005). Nevertheless, the doctrine is

3 unavailing to petitioner, because, as the Ninth Circuit held, once an

4 ambiguous statute has been interpreted by the agency in charge of its

5 implementation, we lack the “authority to re-construe the statute,

6 even to avoid potential constitutional problems.” Morales-Izquierdo,

7 486 F.3d at 493. Our role here is confined to deciding “whether the

8 agency’s interpretation reflects a plausible reading of the statutory

9 text.” Id. We hold that it does.

10 B. Due Process Challenges.

11 Petitioner’s constitutional challenges to the reinstatement

12 procedure, as laid down in 8 C.F.R. § 241.8 and as applied in his

13 case, likewise are without merit. Parties claiming denial of due

14 process in immigration cases must, in order to prevail, “allege some

15 cognizable prejudice fairly attributable to the challenged process.”

16 Lattab, 384 F.3d at 20; see also Zerrei v. Gonzales, 471 F.3d 342,

17 347 (2d Cir. 2006) (per curiam).

18 Petitioner fails to demonstrate how the alleged shortcomings

19 have prejudiced the outcome of his case. He “has admitted” before the

20 ICE and before us “all of the facts necessary to warrant

21 reinstatement” under INA § 241(a)(5), i.e., that he is an alien who

22 reentered the U.S. illegally after being previously deported. De

23 Sandoval, 440 F.3d at 1285. Thus, petitioner concededly “satisfie[d]

24 the statutory predicates for reinstatement.” Morales-Izquierdo, 486

14
 1 F.3d at 495. None of the additional procedural protections he

2 demands, including the presence of counsel, would have changed this.

3 We therefore need not determine the constitutional adequacy of the

4 existing procedures as to aliens who would dispute the factual bases

5 for reinstatement. Id.

6 The absence of the requisite prejudice further precludes

7 petitioner from challenging the constitutionality of 8 C.F.R. § 241.8

8 on its face. Our role is “to provide relief to claimants . . . who

9 have suffered . . . actual harm.” Lewis v. Casey, 518 U.S. 343, 349

10 (1996). We therefore reject petitioner’s due process claims.

11 We note, however, that despite the lack of a formal hearing, the

12 fast-track reinstatement process under 8 C.F.R. § 241.8 is not devoid

13 of procedural safeguards. First, “[t]he immigration officer must

14 obtain the prior order of . . . deportation relating to the alien.”

15 Id. § 241.8(a)(1). Second, if the alien’s identity is disputed, the

16 officer must compare the alien’s fingerprints with those of the

17 previously deported alien; “[i]n the absence of fingerprints in a

18 disputed case the alien shall not be removed pursuant to [the

19 reinstatement regulation].” Id. § 241.8(a)(2). Third, in making the

20 crucial finding that the alien reentered the U.S. unlawfully, the

21 officer must “consider all relevant evidence, including statements

22 made by the alien and any evidence in the alien’s possession.” Id. §

23 241.8(a)(3). If the alien claims lawful admission, “the officer shall

24 attempt to verify” the claim by checking the available ICE databases.

15
 1 Id. Last, even when the officer finds that the alien is subject to

2 removal, the alien must be notified in writing of this adverse

3 determination and be advised of the right to submit “a written or

4 oral statement contesting the determination,” which the officer must

5 then take into account. Id. § 241.8(b). “If the alien expresses a

6 fear of returning to the country designated in [the reinstatement]

7 order, the alien shall be immediately referred to an asylum officer

8 for an interview.” Id. § 241.8(e). The alien may also challenge the

9 reinstatement order in a court of appeals. 8 U.S.C. § 1252(a).

10 C. Collateral Review of the Underlying Deportation Order.

11 Petitioner asks us to vacate the reinstatement order also on the

12 ground that the underlying deportation proceeding deprived him of due

13 process. However, the reinstatement of removal statute expressly

14 prohibits us from giving petitioner a second bite at the apple. See 8

15 U.S.C. § 1231(a)(5) (“[T]he prior order of removal . . . is not

16 subject to being reopened or reviewed . . . .”); Fernandez-Vargas,

17 548 U.S. at 34-35. Petitioner had the right to challenge the validity

18 of the original deportation proceeding in a direct appeal to the BIA,

19 but he did not exercise it.

20 This outcome does not offend due process because, “regardless of

21 the process afforded in the underlying order,” reinstatement of the

22 prior deportation order does not alter petitioner’s legal condition.

23 Morales-Izquierdo, 486 F.3d at 497. The statute “does not penalize an

24 alien for the reentry (criminal and civil penalties do that).”

16
 1 Fernandez-Vargas, 548 U.S. at 44. It merely gives effect to a final

2 order issued after a formal hearing before an immigration judge. The

3 purpose is to “stop an indefinitely continuing violation that the

4 alien himself could end . . . by voluntarily leaving the country.”

5 Id. As the Ninth Circuit put it, “[w]hile aliens have a right to fair

6 procedures, they have no constitutional right to force the government

7 to re-adjudicate a final removal order by unlawfully reentering the

8 country.” Morales-Izquierdo, 486 F.3d at 498.

9 In seeking to set aside the reinstated deportation order,

10 petitioner relies on United States v. Mendoza-Lopez, 481 U.S. 828

11 (1987). However, that case recognized an alien’s right to attack

12 collaterally a prior deportation order only in the context of a

13 subsequent criminal proceeding for illegal reentry where the prior

14 deportation is an element of the crime, and where direct judicial

15 review of the original proceeding was not available due to procedural

16 defects. Id. at 838-39 & 839 n.17.

17 D. Waiver of Inadmissibility.

18 Finally, petitioner argues that, before the reinstatement order

19 could be issued, he was entitled to adjudication on the merits of his

20 applications for Waiver of Grounds of Excludability and for

21 Permission to Reapply for Admission, filed with the DHS on September

22 30, 2005, before the reinstatement order was issued. 6 This Court,

6
In September 2005, petitioner’s wife filed a petition for Alien
Relative and petitioner applied for adjustment of his immigration status;
petitioner also filed petitions for (1) Waiver of Grounds of Excludability
and (2) Permission to Reapply for Admission. On April 5, 2006, former
17
 1 however, recently rejected this argument in Tenesaca Delgado v.

2 Mukasey, 516 F.3d 65 (2d Cir. 2008). In Tenesaca Delgado, we

3 “accorde[d] Chevron deference to the BIA’s holding [in In re Torres-

4 Garcia, 23 I. & N. Dec. 866 (B.I.A. 2006)] that an applicant who is

5 inadmissible [as a result of having reentered this country illegally

6 after having been removed] is ineligible to apply for adjustment of

7 status from within the United States and is bound by the consent to

8 reapply provision, which requires that he seek permission to reapply

9 for admission from outside of the United States after ten years have

10 passed since his most recent departure from the United States.”

11 Tenesaca Delgado, 516 F.3d at 73.

12 We understand petitioner’s situation, yet we cannot disregard

13 the statutory text. 7 An illegal reentrant “is not eligible and may not

14 apply for any relief” under the INA. 8 U.S.C. § 1231(a)(5) (emphasis

15 added). 8 Petitioner was permanently inadmissible and could seek the

counsel for petitioner and his wife withdrew, on behalf of his clients,
the petitions for Alien Relative and Adjustment of Immigration Status,
yet, significantly, not the applications for Waiver of Grounds of
Excludability and Permission to Reapply for Admission. The latter two
petitions were not decided until May 29, 2007, after petitioner sought a
writ of mandamus against the DHS in the U.S. District Court for the
Southern District of New York.
7
See supra note 1.
8
8 C.F.R. § 241.8 does allow an alien subject to reinstatement to (1)
“express[] a fear of returning to the country designated in [the
reinstatement] order”; or (2) apply for adjustment of status under either
the Haitian Refugee Immigrant Fairness Act of 1998 or the Nicaraguan
Adjustment and Central American Relief Act. In both those instances,
reinstatement proceedings halt until there is a final determination on the
reasonable fear or adjustment of status claims. See 8 C.F.R. § 241.8(d)-
(e). Petitioner did indeed express fear of returning to Honduras while in
custody and was referred first to an asylum officer and then to an
immigration judge, who dismissed the claim in March 2007. Petitioner did
18
1 consent of the Homeland Security Secretary to a new application for

2 admission only after having resided outside the U.S. for a minimum of

3 10 years. See 8 U.S.C. § 1182(a)(9)(C)(i)(II) & (ii). Petitioner

4 admittedly did not satisfy these requirements.

5

6 III. CONCLUSION

7 We have considered all of petitioner’s arguments and find them

8 to be without merit. Accordingly, we DENY the petition.

not seek review of the BIA’s ruling that affirmed the dismissal in July
2007. Thus, the reinstatement order may be properly enforced at the
present juncture.
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