United States Court of Appeals
For the First Circuit
No. 04-1968
HELDER DACOSTA PONTA-GARCA,
Petitioner,
v.
JOHN ASHCROFT, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF A FINAL ORDER OF
THE UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT
Before
Torruella, Circuit Judge,
Campbell, Senior Circuit Judge,
and Selya, Circuit Judge.
Roberto Gonzalez and Audette, Bazar, Berren & Gonzalez Inc. on
memorandum for petitioner.
John D. Williams, Attorney, Office of Immigration Litigation,
on memorandum for respondent.
October 20, 2004
SELYA, Circuit Judge. The petitioner, Ponta-Garca, a
Portugese national, seeks review of an order reinstating an earlier
order of deportation because of his allegedly illegal reentry into
this country. The respondent, the Attorney General, has moved to
dismiss, contending that jurisdiction is lacking because the
petition for review was not timely filed. We agree. Thus, we are
constrained to grant the motion to dismiss.
The petitioner was ordered deported in 1987 after overstaying
his authorized period of visitation. For reasons that are
unexplained in the record, that order was never executed.
Seventeen years later, on May 24, 2004, he was apprehended by
agents of the respondent and served with a one-page document (Form
I-871) entitled "Notice of Intent/Decision to Reinstate Prior
Order." This document relied on a revised statutory provision that
took effect in 1997. The statute provides in part as follows:
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 the alien shall be removed
under the prior order at any time after the reentry.
INA § 241(a)(5), 8 U.S.C. § 1231(a)(5). The first part of Form I-
871 consisted of the "notice of intent" to reinstate and was signed
by an immigration officer (Agent Nelligan). It charged that the
petitioner had departed voluntarily on April 23, 1992, pursuant to
the deportation order; that he had illegally reentered the country
four days later; and that he was thus subject to removal by
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reinstatement of the prior order. The notice informed petitioner
that he could "contest this determination by making a written or
oral statement to an immigration officer." It also stated that
"[t]he facts that formed the basi[s] of this determination, and the
existence of a right to make a written or oral statement contesting
this determination, were communicated to the alien." In a box
meant to indicate whether the petitioner wished to make such a
statement, the handwritten notation "refuse to answer" appears. A
space for his signature is also empty.
The following day, on May 25, 2004, another immigration
officer (Agent Riccio) signed a box at the bottom of Form I-871
endorsing a pre-printed "Decision, Order, and Officer's
Certification" that the petitioner was subject to removal through
reinstatement of the earlier deportation order. The petitioner
sought reconsideration of this decision in a letter from counsel
dated June 28, 2004, addressed to the field office director. That
request remains pending. On July 19, 2004, fifty-five days after
Agent Riccio's May 25 decision, the petitioner filed the instant
petition for review.
An order reinstating an earlier order of deportation is
subject to review under 8 U.S.C. § 1252. See, e.g., Lattab v.
Ashcroft, ___ F.3d ___, ___ (1st Cir. 2004) [2004 WL 2059762, at
*2]; Arevalo v. Ashcroft, 344 F.3d 1, 9 (1st Cir. 2003). Section
1252(b)(1) provides that "[t]he petition for review must be filed
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not later than 30 days after the date of the final order of
removal." This deadline is a "strict jurisdictional requirement."
Zhang v. INS, 348 F.3d 289, 292 (1st Cir. 2003); see also Pimental-
Romero v. INS, 952 F.2d 564, 564 (1st Cir. 1991) (applying former
8 U.S.C. § 1105a(a)(1)). The respondent, noting that the instant
petition was filed more than thirty days after Agent Riccio's May
25 decision, asserts that jurisdiction is lacking.
The petitioner's principal response requires an examination of
8 C.F.R. § 241.8, the regulation governing reinstatement of removal
orders. The paragraph entitled "Notice" reads as follows:
If an officer determines that an alien is subject to
removal under this section, he or she shall provide the
alien with written notice of his or her determination.
The officer shall advise the alien that he or she may
make a written or oral statement contesting the
determination. If the alien wishes to make such a
statement, the officer shall allow the alien to do so and
shall consider whether the alien's statement warrants
reconsideration of the determination.
Id. § 241.8(b). The petitioner's argument runs along the following
lines: (i) this provision affords the alien a right to make a
statement and thereby seek reconsideration of the determination to
reinstate; (ii) by definition, reconsideration may occur only after
that determination has been made (here, after Agent Riccio's May 25
decision); (iii) the thirty-day appeal period does not begin to run
until the reconsideration request has been resolved; and (iv) far
from being tardy, the instant petition is, if anything, premature.
The second step in this analysis fails. It is apparent that
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the "determination" subject to "reconsideration" is not the one
made by Agent Riccio in the May 25 decision and order, but, rather,
the one made by Agent Nelligan in the May 24 notice of intent.
This is confirmed by the language in the notice (which uses the
word "determination" five times), as well as by the first two
sentences of 8 C.F.R. § 241.8(b). It is also apparent that Agent
Riccio's ruling accomplished whatever reconsideration was deemed
warranted here (which may have been none, given the petitioner's
refusal to provide a statement). Accordingly, counsel's June 28
letter cannot be viewed as invoking the reconsideration mechanism
set forth in section 241.8(b); it can only be seen as a separate
motion to reconsider or to reopen, and, thus, unconnected to the
cited regulation. The filing of such a motion does not toll the
thirty-day period for seeking judicial review.1 See Stone v. INS,
514 U.S. 386 (1995). Consequently, we are compelled to dismiss the
instant petition for lack of jurisdiction.2
We add a coda. If the representations made by the
petitioner's counsel are accurate, he would appear to have a strong
1
Should the eventual disposition of that motion not be in
the petitioner's favor, he may, of course, file a separate petition
for review with respect thereto.
2
We summarily reject the petitioner's other arguments. For
the reasons discussed above, his exhaustion-of-administrative-
remedies rationale is unpersuasive. See Castro-Cortez v. INS, 239
F.3d 1037, 1044-45 (9th Cir. 2001). So too is his reliance on 8
C.F.R. § 1003.3(a)(2); that regulation applies only to decisions
that are appealable to the Board of Immigration Appeals.
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case on the merits. He contends that he did not voluntarily depart
under the prior deportation order but, rather, left the country
temporarily to attend a wedding. He also contends that he did not
reenter the country illegally but, rather, was inspected and
allowed entry. If either of these assertions is correct, the
reinstatement provision would appear to be inapplicable by its
express terms. Moreover, the petitioner contends that the 1987
deportation order was invalidated by the federal district court in
Connecticut at some point after his reentry. If that is so, the
administrative reinstatement of that order would appear
problematic. See Chacon-Corral v. Weber, 259 F. Supp. 2d 1151,
1164 (D. Col. 2003) ("Because deportation for unauthorized reentry
under INA § 241(a)(5) is under the original order of deportation,
a determination that the original order was invalid renders §
241(a)(5) inapplicable in a given case."). Particularly in light
of the due process concerns that can arise in this context, see,
e.g., Lattab, ___ F.3d at ___ n.6 [2004 WL 2059762, at *9 n.6];
Arreola-Arreola v. Ashcroft, 383 F.3d 956, ___ n.5 (9th Cir. 2004)
[2004 WL 1977663, at *2 n.5]; Castro-Cortez v. INS, 239 F.3d 1037,
1047-50 (9th Cir. 2001), we encourage the respondent to reexamine
the case with care.
We need go no further. The petition for review is untimely
and, hence, is dismissed for lack of jurisdiction. The temporary
stay of removal imposed by this court on July 30, 2004 is
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rescinded.
It is so ordered.
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