Jesus Herrera v. Loretta E. Lynch

FILED
NOT FOR PUBLICATION
MAR 01 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JESUS LEONEZ HERRERA, a/k/a No. 11-72955
Francisco Mina Corrales,
Agency No. A077-225-296
Petitioner,

v. MEMORANDUM*

LORETTA E. LYNCH, Attorney General,

Respondent.

On Petition for Review of an Order of the
Department of Homeland Security

Submitted February 8, 2016**
Pasadena, California

Before: BERZON, DAVIS***, and OWENS, Circuit Judges.

Jesus Leonez Herrera, a native and citizen of Mexico, petitions for review of

the Department of Homeland Security’s (“DHS”) October 5, 2011 order reinstating

*
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).
***
The Honorable Andre M. Davis, Senior Circuit Judge for the U.S.
Court of Appeals for the Fourth Circuit, sitting by designation.
his April 2000 expedited removal order. We have jurisdiction pursuant to 8 U.S.C.

§ 1252. Our review, however, is “limited to confirming the agency’s compliance

with the reinstatement regulations.” Garcia de Rincon v. DHS, 539 F.3d 1133,

1137 (9th Cir. 2008). We deny in part and dismiss in part the petition for review.

1. The DHS did not err in issuing Herrera’s reinstatement order, as the

record shows that Herrera is an alien, he is the subject of a prior expedited order of

removal, and he illegally reentered the country without inspection days after his

expedited removal order was executed. See id. (observing that our jurisdiction is

limited to reviewing the “three discrete inquiries an immigration officer must make

in order to reinstate a removal order: (1) whether the petitioner is an alien; (2)

whether the petitioner was subject to a prior removal order; and (3) whether the

petitioner re-entered illegally”); 8 U.S.C. § 1231(a)(5) (providing that, if the DHS

“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”).

2. While Herrera argues that he cannot have an outstanding order of

removal reinstated against him because he has never been ordered removed by an

immigration judge, no such requirement exists. The Immigration and Nationality

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Act (“INA”) provides that “[a]ny alien who falsely represents, or has falsely

represented, himself or herself to be a citizen of the United States for any purpose

or benefit under this chapter . . . is inadmissible,” 8 U.S.C. § 1182(a)(6)(C)(ii)(I),

and requires any immigration officer who deems an alien inadmissible under

§ 1182(a)(6)(C) to “order the alien removed from the United States without further

hearing or review unless the alien indicates either an intention to apply for asylum .

. . or a fear of persecution,” 8 U.S.C. § 1225(b)(1)(A)(i).

3. Similarly, an immigration officer validly reinstated Herrera’s prior

expedited removal order pursuant to 8 U.S.C. § 1231(a)(5). While Herrera

highlights that his Warrant of Removal, as provided by the DHS, contains an

erroneously checked box indicating that he “is subject to removal/deportation from

the United States, based upon a final order by: an immigration judge in exclusion,

deportation, or removal proceedings,” the Notice of Intent/Decision to Reinstate

Prior Order clearly informed Herrera that the reinstatement determination was

made by an immigration officer in accordance with § 1231(a)(5). Moreover, to the

extent that Herrera raises a procedural due process challenge on account of this

error, he has not established prejudice. See Lata v. INS, 204 F.3d 1241, 1246 (9th

Cir. 2000) (explaining that, to prevail on a due process challenge, an alien must

show error and prejudice).

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 4. Finally, we lack jurisdiction to consider any collateral attacks Herrera

wages against his April 2000 expedited removal order or his October 2011

reinstatement order. See Garcia de Rincon, 539 F.3d at 1137 (noting that,

“whatever relief might be gained by the operation of § 1252(a)(2)(D) and the

‘gross miscarriage’ standard, it is unavailable to [petitioner] because her

underlying removal order is an expedited removal order that is subject to additional

jurisdictional bars—8 U.S.C. §§ 1252(a)(2)(A) and 1252(e)”).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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