[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-11095 ELEVENTH CIRCUIT
MARCH 5, 2009
________________________
THOMAS K. KAHN
CLERK
Agency Nos. A78-832-140,
A71-793-730
MANUEL ROBERTO AVILA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(March 5, 2009)
Before TJOFLAT, BLACK and COX, Circuit Judges.
PER CURIAM:
Manuel Roberto Avila, a native and citizen of Peru, through counsel,
petitions this Court for review of an order issued by the Department of Homeland
Security (DHS) on March 6, 2008, reinstating an August 12, 1997, order of
removal, pursuant to 8 U.S.C. § 1231(a)(5).
Avila argues the order of reinstatement violated his due process rights
because (1) he did not have a meaningful opportunity to contest the reinstatement
decision; and (2) there was no underlying removal order, or, in the alternative, any
underlying removal order was invalid because it was the product of due process
violations and constituted an impermissible “negative consequence” of his failure
to post a voluntary departure bond. Avila also contends he is eligible to adjust his
status under 8 U.S.C. § 1255(i).
After review of the record and the parties’ briefs, and having the benefit of
oral argument, we dismiss Avila’s petition in part and deny in part.
I. BACKGROUND
On June 27, 1997, the Immigration and Naturalization Service (INS) of
Arlington, Virginia, served a man claiming to be Roman Moreno-Tapia with a
notice to appear, charging him with removability for being an alien in the United
States without having been admitted or paroled, in violation of 8 U.S.C.
§ 1182(a)(6)(A)(i). On August 12, 1997, the Immigration Judge issued an order
granting Avila voluntary departure “under INS safeguards . . . upon posting a bond
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in the amount of $1,500 by 18 August 97 with an alternate order of removal to
Mexico.” Avila declined to pay the voluntary departure bond and was transported
to Mexico on September 22, 1997.
Avila subsequently reentered the United States and married his wife on
March 28, 2001. She applied on his behalf for adjustment of status that year. The
application was denied but, as of February 5, 2008, had not yet been made final.
On February 5, 2008, Avila was approached by Bureau of Immigration and
Customs Enforcement (BICE) agents at his home. He admitted in a sworn
statement he previously used the name Roman Moreno-Tapia and last entered the
United States in November 2000. He also admitted he had been removed in 1997
and had not subsequently applied for permission to reenter the country.
On March 6, 2008, the Government filed a “Notice of Intent/Decision to
Reinstate Prior Order.” The notice stated that Avila was subject to an order of
removal entered on August 12, 1997, that he was removed pursuant to that order
on September 22, 1997, and that he illegally reentered the United States in
November of 2000. On the same date, DHS issued an order reinstating his prior
order of removal. The instant petition for review followed.
II. JURISDICTION
We review de novo our own subject matter jurisdiction. Sanchez Jimenez v.
U.S. Att’y Gen., 492 F.3d 1223, 1231 (11th Cir. 2007).
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We instructed the parties to brief the following three jurisdictional questions:
(1) whether the order of reinstatement is a “final order of removal” subject to
judicial review; (2) whether this Court has jurisdiction over Avila’s petition for
review, given the underlying removal proceedings occurred in Arlington, Virginia,
but the order of reinstatement was issued in Miami, Florida; and (3) whether this
Court has jurisdiction to review the underlying removal order. Although neither
party disputes this Court’s jurisdiction under the first two issues, we review the
jurisdictional questions for the first time in this Court. With respect to the third
issue, the Government argues we lack jurisdiction to review the August 12, 1997,
removal order.
1. Order of Reinstatement
We have jurisdiction to review “final order[s] of removal” under the
Immigration and Nationality Act. 8 U.S.C. § 1252(a)(1). Section 241(a)(5) of the
INA governs the reinstatement of removal orders, and states “the prior order of
removal . . . is not subject to being reopened or reviewed” and the individual
subject to the order “is not eligible and may not apply for any relief under this
chapter.” 8 U.S.C. § 1231(a)(5). This statute does not provide for administrative
review, so a petitioner subject to a reinstatement order has nothing left to appeal.
See id. Both parties contend § 1252(a)(1) authorizes review of the reinstatement
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order, and we agree. An order of reinstatement is a final order of removal under
§ 1252(a)(1).
2. Jurisdiction over Avila’s Petition for Review
Every circuit to discuss whether § 1252(b)(2) circumscribes subject matter
jurisdiction has concluded § 1252(b)(2) is a nonjurisdictional venue provision. See
Moreno-Bravo v. Gonzales, 463 F.3d 253, 262 (2d Cir. 2006); Georcely v.
Ashcroft, 375 F.3d 45, 49 (1st Cir. 2004); Nwaokolo v. I.N.S., 314 F.3d 303, 306
n.2 (7th Cir. 2002) (per curiam); cf. Jama v. Gonzales, 431 F.3d 230, 233 (5th Cir.
2005) (per curiam) (refusing to raise the nonjurisdictional venue issue sua sponte);
Bonhometre v. Gonzales, 414 F.3d 442, 446 n.5 (3d Cir. 2005) (noting “it would be
a manifest injustice” to transfer the case to another court). Additionally, both
parties agree venue is proper in this Court because the order of reinstatement was
issued in Miami, Florida. We have never addressed whether § 1252(b)(2) merely
defines venue or whether it circumscribes subject matter jurisdiction. On this issue
of first impression, we join those circuits that have concluded § 1252(b)(2) is a
nonjurisdictional venue provision.
Section 1252(b)(2), which is entitled “Venue and forms,” provides as
follows:
The petition for review shall be filed with the court of appeals for the
judicial circuit in which the immigration judge completed the
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proceedings. The record and briefs do not have to be printed. The
court of appeals shall review the proceeding on a typewritten record
and on typewritten briefs.
8 U.S.C. § 1252(b)(2). First, § 1252(b)(2) does not refer to “jurisdiction” or
“judicial review.” See Moreno-Bravo, 463 F.3d at 259 (“In view of the
extraordinary attention Congress directed toward federal jurisdiction over petitions
for review in § 1252, . . . it is hard for us to believe that the legislature would then
neglect to express a similarly clear intent—or any intent at all—to circumscribe
jurisdiction . . . .”). Second, as noted by the Second Circuit, the underlying
purpose and background of the REAL ID Act supports the conclusion that
§ 1252(b)(2) is not a jurisdictional statute. See id. (discussing the REAL ID Act
amendments to § 1252 and concluding “it should be plain beyond any doubt that
§ 1252(b)(2), which was left untouched by those amendments, does not concern
jurisdiction”). Finally, although the title of a statute cannot trump its clear terms,
§ 1252(b)(2) is entitled “Venue and forms,” further supporting the conclusion this
is not a jurisdictional provision. See id. at 260.
In accordance with the language of the statute and sister circuit authority, we
conclude § 1252(b)(2) is a nonjurisdictional venue provision. Further, the
Government concedes venue is proper in this Court because the order of
reinstatement was issued in Miami, Florida. Accordingly, we have jurisdiction to
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review Avila’s order of reinstatement under § 1252(a)(1), and venue is proper in
this Court under § 1252(b)(2).
3. Underlying Removal Order
This Court has jurisdiction to review a final order of removal only if the
alien has first exhausted his administrative remedies, 8 U.S.C. § 1252(d)(1);
Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1251 (11th Cir. 2006), and
has timely filed a petition for review in this Court, 8 U.S.C. § 1252(b)(1); Dakane
v. U.S. Att’y Gen., 399 F.3d 1269, 1272 n.3 (11th Cir. 2005). Although we have
recognized “some due process claims do not require exhaustion . . . we have never
specifically determined which due process claims require exhaustion.” Amaya-
Artunduaga, 463 F.3d at 1251 (internal citations and quotation marks omitted).
Procedural due process claims, however, “must be raised before the BIA.” Id.
On petition for review, Avila raises procedural due process claims and
alleges no “negative consequences” could attach to his failure to post the voluntary
departure bond. Avila failed to challenge his underlying removal proceedings
before the BIA or this Court. Because Avila failed to exhaust his administrative
remedies or seek timely review of his 1997 deportation order, we lack jurisdiction
to review the underlying validity of that order. We therefore do not address
petitioner’s argument that the underlying removal order was the product of due
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process violations or that it constituted an impermissible “negative consequence”
of his failure to post a voluntary departure bond.
III. DUE PROCESS
We review de novo constitutional due process claims. Ali v. U.S. Att’y Gen.,
443 F.3d 804, 808 (11th Cir. 2006). “In order to establish a due process violation,
an alien must show that he or she was deprived of liberty without due process of
law, and that the asserted error caused him substantial prejudice.” Garcia v. U.S.
Att’y Gen., 329 F.3d 1217, 1222 (11th Cir. 2003) (internal citation omitted). To
show substantial prejudice, the petitioner must show the alleged due process
violation would have affected the outcome of the case. See, e.g., Patel v. U.S. Att’y
Gen., 334 F.3d 1259, 1263 (11th Cir. 2003) (“It is clear that there was no such
prejudice because it is undisputed that at the time of those proceedings Patel was
removable as an alien convicted of an aggravated felony and the result of those
proceedings would have been the same in the absence of the alleged procedural
deficiencies.”).
In establishing whether a prior removal order may be reinstated under the
regulations implementing § 1231(a)(5), an immigration officer must determine
whether (1) the alien has been subject to a prior order of removal, (2) the alien is in
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fact the same alien who was previously removed, and (3) the alien unlawfully
reentered the United States. 8 C.F.R. § 241.8(a)(1)-(3).
In De Sandoval v. U.S. Att’y Gen., 440 F.3d 1276, 1285 (11th Cir. 2006), we
rejected the petitioner’s argument that § 241.8 denied her due process because it
did “not provide her the right to a neutral judge, to appeal BICE’s decision to the
BIA, to be represented by counsel, to develop a record, or to receive adequate
notice of BICE’s intended actions.” We reasoned, because the petitioner had
admitted the three elements necessary to establish her removal under § 241.8(a),
she could not show how the requested process would have affected the outcome in
her case. Id.
Although Avila contends there was no underlying removal order, he
admitted in sworn testimony and in his brief that he was subject to a prior removal
order in 1997. In this respect, § 1231(a)(5) includes voluntary departure orders as
well as removal orders, as it authorizes reinstatement when the alien has
previously been removed or when he has voluntarily departed under an order of
removal. 8 U.S.C. § 1231(a)(5). Because Avila was subject to a prior removal
order, the first element of § 241.8(a) is satisfied. Avila does not dispute the second
or third element under § 241.8(a) and has therefore abandoned these issues. De
Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1006 n.3 (11th Cir. 2008). These
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elements, however, are also met. With respect to the second element, there is no
dispute Avila was the subject of the 1997 removal order, as he admitted in a sworn
statement to using the name of Roman Moreno-Tapia, the name on the prior
removal order. With respect to the third element, there is also no dispute he
unlawfully reentered the United States, as he admitted in a sworn statement he
failed to obtain permission to reenter the country. Because the three elements of
§ 241.8 are satisfied, Avila cannot show substantial prejudice from his alleged
inability to contest the reinstatement decision. Accordingly, the order of
reinstatement did not violate Avila’s due process rights.
IV. RELIEF UNDER 8 U.S.C. § 1255(i)
Certain aliens physically present in the United States may apply to the
Attorney General for adjustment of status to that of an alien lawfully admitted for
permanent residence. 8 U.S.C. § 1255(i)(1). We held in De Sandoval that
Ҥ 1231(a)(5) bars illegal reentrants from seeking an adjustment of status under
§ 1255(i).” 440 F.3d at 1285. Accordingly, Avila’s argument is without merit.
V. CONCLUSION
For the reasons stated above, Avila has not shown any due process violation
with respect to the order of reinstatement, and we lack jurisdiction to review the
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validity of the underlying removal order. We also conclude Avila is not entitled to
relief under § 1255(i).
PETITION DISMISSED IN PART, DENIED IN PART.
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