United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 5, 2003
Charles R. Fulbruge III
Clerk
No. 02-60843
Summary Calendar
PATRICIA RODRIGUEZ,
Petitioner,
versus
JOHN ASHCROFT, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Immigration and Naturalization Service
Agency No. A29-303-159
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Before SMITH, DUHE’, and WIENER, Circuit Judges.
PER CURIAM:1
Patricia Rodriguez has petitioned for review of the decision
of the Immigration and Naturalization Service (“INS”) reinstating
its May 1998 order of removal pursuant to Immigration and
Nationality Act (“INA”) § 241(a)(5). See 8 U.S.C. § 1231(a)(5).
“In enacting § 241(a)(5), Congress’ intent was to streamline and
expedite existing procedures for removing illegal aliens, which had
become ‘cumbersome and duplicative.’” Ojeda-Terrazas v. Ashcroft,
290 F.3d 292, 296 (5th Cir. 2002). Under implementing regulations
pertaining to reinstatement proceedings, “the alien is not entitled
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Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
to a hearing before an immigration judge.” Id. (citing 8 C.F.R.
§ 241.8). “Rather, an INS officer determines (1) the identity of
the alien; (2) whether the alien was subject to a prior order of
removal; and (3) whether the alien unlawfully reentered the United
States.” Id. This court has jurisdiction to review the Attorney
General’s reinstatement order but not the merits of the original
order of removal. Id. at 294–95.
Rodriguez raises several issues with regard to the adequacy of
the administrative record. Rodriguez contends that the
administrative record does not contain a copy of the prior order of
removal and that an I-213 Record of Deportable/Inadmissible Alien
dated “9/16/2001” in the record refers erroneously to an order of
removal dated “5/2/02.” Rodriguez did not dispute her identity
below or that she was subject to an order of removal issued in May
1998. The record has been supplemented with a copy of the removal
order. There is no reversible error.
Rodriguez contends that the Attorney General has not shown
that she was the person who was the subject of the May 2, 1998,
order of removal. Rodriguez argues that the 1998 order identified
the person being removed as a married person and that she could not
have been married at that time because her current husband had not
yet divorced his former wife. To the extent that this argument
implicates the validity of the original order of removal, it is
beyond this court’s jurisdiction. See Ojeda-Terrazas, 290 F.3d at
294–95. Again, Rodriguez conceded below that she was removed to
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Mexico from Dallas/Fort Worth International Airport in May 1998.
There is no genuine dispute as to Rodriguez’ identity as the person
who was subject to the May 1998 removal order.
Rodriguez contends that the regulations implementing INA
§ 241(a)(5) violate her right to due process because they do not
provide for an evidentiary hearing with benefit of counsel before
an immigration judge. Rodriguez contends that she was prejudiced
by the lack of a hearing because she did not have an opportunity to
challenge the legality of the 1998 removal order. This argument is
without merit as INA § 241(a)(5) provides that the prior order of
removal is not subject to being reopened or reviewed. See 8 U.S.C.
§ 1231(a)(5). Rodriguez complains also that the Attorney General’s
failure to obtain the prior order of removal and to determine her
true identity also violated her right to due process. Again, there
is no genuine issue as to Rodriguez’ identity or the existence of
the 1998 order of removal. Rodriguez cannot show that she was
prejudiced by the lack of an evidentiary hearing before an
immigration judge. See Ojeda-Terrazas, 290 F.3d at 302. The
petition for review is
DENIED.
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