Jorge Moreno-Martinez v. William P. Barr
Opinion
Jorge Moreno-Martinez petitions for review of the order of the Department of Homeland Security ("DHS") reinstating Moreno-Martinez's order of removal. Moreno-Martinez argues that he was denied due process because he and his counsel did not receive a copy of the reinstatement order and did not have the opportunity to argue against the validity of his underlying removal order. Moreno-Martinez's constitutional challenge to the reinstatement order has no merit because, even assuming a due-process violation occurred, he has not demonstrated prejudice from that violation. In fact, there can be no prejudice because we have no jurisdiction to reopen the underlying removal order, given that Petitioner failed to challenge that order within thirty days of its issuance, as required by
Moreno-Martinez is a native and citizen of Honduras. He arrived in the United States in 1999, returned to Honduras in 2003, and then reentered the United States in 2004. On January 3, 2007, DHS issued a notice of removal. In a document titled "Notice to Appear," DHS charged Petitioner with violating
Petitioner then entered removal proceedings, during which he conceded his charges of removability and applied for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). An immigration judge denied Petitioner's request for asylum, withholding of removal, and relief under the CAT, but granted his additional request for voluntary removal upon payment of a $500 bond. The Board of Immigration Appeals ("BIA") affirmed the immigration judge's decision, denied reinstating the voluntary removal period because of lack of proof that Petitioner paid the bond, and ordered Petitioner to be removed from the United States. Moreno-Martinez did not petition this court for review of the removal order at that time.
Pursuant to the removal order, Moreno-Martinez left the United States on February 24, 2012. He later returned to the United States, and on August 1, 2018, Immigration and Customs Enforcement detained him. On that same day, DHS filed a Notice of Intent to reinstate its previous removal order dated June 17, 2011. This timely petition for review of the reinstatement order followed.
We "treat[ ] reinstatement orders like removal orders for purposes of our review of them."
Villegas de la Paz v. Holder
,
Moreno-Martinez contends that "DHS violated its own procedures which resulted in severe violation of the Petitioner's right to due process" because "DHS did not provide Petitioner or his counsel a copy of the reinstatement order, nor did they allow him to make a statement contesting the reinstatement determination." Pet'r Br. at 5. According to Petitioner, had DHS given him "the notice of reinstatement and allowed [him] to make a statement, he would have been able to present an argument as to why his underlying removal order was invalid" in light of
Pereira v. Sessions
, --- U.S. ----,
Before turning to the crux of Petitioner's argument, however, we address the government's assertion that this court "lacks jurisdiction to review Petitioner's collateral challenge to his prior order of removal." Resp't Br. at 4. The government's argument, given the underlying statutory framework, actually presents us with a two-fold inquiry. First, we must address whether we have jurisdiction to review a reinstatement order in light of
Our inquiry begins with the two principal statutory provisions relating to our jurisdiction over petitions for review of reinstatement of removal orders:
The sole basis for Moreno-Martinez's prejudice argument is that he was denied the opportunity to argue that the immigration judge and the BIA were without jurisdiction to enter the underlying removal order because the Notice to Appear did not include the date and time for the initial hearing date.
1
However, because (as explained below) we lack jurisdiction to review the validity of the removal order, Petitioner's claim must fail; he cannot have been prejudiced by an inability to make arguments to us that we do not have jurisdiction to hear.
Cf.
Casillas v. Holder
,
We lack jurisdiction to review Moreno-Martinez's assertion that "the Immigration Court never 'vested' jurisdiction over these proceedings," Pet'r Br. at 8, and vacate the removal order, because that challenge is time-barred.
See
For all these reasons, the petition for review is DENIED .
To be sure, we would have jurisdiction to review a constitutional claim or question of law relating to his reinstatement proceedings or reinstatement order.
See
Ovalle-Ruiz v. Holder
,
We recognize that this court in
Villegas
,
As this court has explained previously, "we do not preclude the possibility that an alien could raise a Suspension Clause challenge to § 1252(b)(1) 'where the provision forecloses judicial review of an underlying removal order in a reinstatement proceeding; and where, either due to ineffective assistance of counsel or misconduct by government officials, the alien was prevented from challenging that underlying order and now is barred from reopening his removal proceedings (as a means to challenge that underlying order) because he is subject to reinstatement under § 1231(a)(5).' "
Ovalle-Ruiz
,
Reference
- Full Case Name
- Jorge MORENO-MARTINEZ, Petitioner, v. William P. BARR, Attorney General, Respondent.
- Cited By
- 7 cases
- Status
- Published