Zamora-Vallejo v. Holder

Filing 511106697

Case: 08-61111

Document: 00511106697

Page: 1

Date Filed: 05/11/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
May 11, 2010 N o . 08-61111 Lyle W. Cayce Clerk

G R A C I E L A ZAMORA-VALLEJO, P e tit io n e r , v. E R IC H. HOLDER JR., United States Attorney General, R esp on d en t.

O n Petition for Review of a Reinstated Order of Removal of an Immigration Judge A g e n c y No. A090-944-085

B e fo r e KING, BARKSDALE, and ELROD, Circuit Judges. P E R CURIAM:* I n this immigration case, petitioner Graciela Zamora-Vallejo challenges a November 18, 2008 order, issued by the Department of Homeland Security (D H S ), reinstating her March 5, 1999 removal order pursuant to § 241(a)(5) of t h e Immigration and Nationality Act (INA), 8 U.S.C. § 1231(a)(5). ZamoraV a lle jo argues that the reinstatement of the order without a hearing violated her r ig h t to due process and that there was no proof that she had been previously

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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Date Filed: 05/11/2010

No. 08-61111 o r d e r e d removed from the United States. For the following reasons, we deny her p e tit io n for review. I. FACTUAL BACKGROUND Z a m o r a -V a lle jo is a native and citizen of Mexico who entered the United S t a te s without inspection in January of 1977 and became a lawful permanent r e s id e n t in November of 1991. On November 14, 1997, Zamora-Vallejo was c o n v i ct e d of conspiracy to transport undocumented aliens within the United S t a te s . In June of 1998, the Immigration and Naturalization Service (INS) is s u e d a Notice to Appear, charging Zamora-Vallejo with being removable under § 237(a)(2)(A)(iii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien who has b e e n convicted of an aggravated felony. The government contends that Zamora-Vallejo was removed on March 9, 1 9 9 9 in accordance with a March 5, 1999 order of removal issued by an I m m ig ra tio n Judge (IJ) sitting in San Francisco, California. According to the g o v e r n m e n t, Zamora-Vallejo subsequently reentered the United States illegally s o m e t im e in March of 1999. Zamora-Vallejo argues that the original copy of the r e m o v a l order contains no date and no name and that there is no proof that she w a s ever ordered removed. She also contends that she applied for reentry in

H id a lg o , Texas on June 4, 2004 and received permission from the DHS to enter t h e United States in the form of a stamp on her passport indicating that she had b e e n "processed for I-551" as a lawful permanent resident. The government d e n ie s that Zamora-Vallejo has ever received such permission. II. PROCEDURAL HISTORY O n November 14, 2008, the DHS interviewed Zamora-Vallejo in a Texas ja il where she was incarcerated for a traffic offense. The DHS then issued Z a m o r a -V a lle jo a "Notice of Intent/Decision to Reinstate Prior Order" and in f o r m e d her that it would reinstate the 1999 removal order. Cf. 8 U.S.C. § 1 2 3 1 (a )(5) (reinstatement of removal orders against aliens reentering illegally); 2

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Document: 00511106697

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No. 08-61111 8 C.F.R. § 241.8. The form advised Zamora-Vallejo that she could contest the r e in s ta t e m e n t order by making an oral or written statement to the immigration o ffic e r . She declined to make any statement and refused to sign the form. Z a m o r a -V a lle jo filed a timely petition for review with this court. III. ANALYSIS W e have jurisdiction to review the 2008 reinstatement order but not the u n d e r ly in g 1999 order of removal. See 8 U.S.C. § 1231(a)(5) (providing that a "p r io r order of removal . . . is not subject to being reopened or reviewed"); OjedaT e r ra z a s v. Ashcroft, 290 F.3d 292, 294­95 (5th Cir. 2002).1 The government c o n t e n d s that Zamora-Vallejo had failed to exhaust her administrative remedies u n d e r the INA because she did not raise an objection to her reinstatement before t h e immigration officer. Because we find that Zamora-Vallejo cannot prevail on th e merits of her petition, we pretermit this jurisdictional question. See MadrizA lv a r a d o v. Ashcroft, 383 F.3d 321, 327-28 (5th Cir. 2004) (pretermitting ju r is d ic t io n a l question where collateral attack on the removal order could be d e n ie d on the merits).

However, we have observed, in the context of a collateral attack on a reinstated removal order, that the limit on our jurisdiction set forth in § 1231(a)(5) does not bar review in cases challenging an underlying removal order on constitutional or other legal grounds. Ramirez-Molina v. Ziglar, 436 F.3d 508, 513-14 (5th Cir. 2006); see also 8 U.S.C. § 1252(a)(2)(D). Zamora-Vallejo urges us to review the 1999 removal order under United States v. Mendoza-Lopez, 481 U.S. 828 (1987). In Mendoza-Lopez, the Supreme Court held that in cases "where the defects in an administrative proceeding foreclose judicial review of that proceeding, an alternative means of obtaining judicial review must be made available before the administrative order may be used to establish conclusively an element of a criminal offense." Id. at 838 (footnote omitted). Zamora-Vallejo's citation to Mendoza-Lopez is unavailing because a proceeding under § 1231(a)(5) does not involve a criminal sanction for an illegal reentry but merely the reinstatement of a prior removal order. See FernandezVargas v. Gonzales, 548 U.S. 30, 44 (2006). Furthermore, Zamora-Vallejo presents only conclusory arguments that the 1999 order was "defective" and violated her due-process rights. These arguments have not been properly briefed and are therefore waived. McIntosh v. Partridge, 540 F.3d 315, 325 n.12 (5th Cir. 2008) (citation omitted).

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No. 08-61111 A . The Prior Removal Order Z a m o r a -V a lle jo contends that the administrative record does not contain s u ffic ie n t proof that she was subject to a prior deportation order, a requirement fo r reinstatement of a removal order under § 1231(a)(5). See 8 C.F.R. § 241.8(a). S h e bases this argument on the fact that the copy of the March 5, 1999 removal o r d e r that was included in the original administrative record appears to be u n s ig n e d and does not include her name. The government concedes that the copy is of extremely poor quality and h a s filed a legible copy along with a motion to supplement the administrative r e c o rd , which the clerk of the court has granted. The new copy clearly indicates t h a t Zamora-Vallejo is the alien subject to the March 5, 1999 order and that the o r d e r was properly signed by an IJ. Therefore, we find no reversible error. See M ir e le s -Z a p a ta v. Ridge, 76 F. App'x 546, 547 (5th Cir. 2003) (unpublished) (fin d in g no reversible error with respect to an alien's claim that the a d m in is t r a tiv e record did not contain a copy of the removal order after the g o v e r n m e n t supplemented the record with a copy). B. The I-551 Stamp Z a m o r a -V a lle jo next argues that she received a stamp on her passport s t a tin g "I-551 Temporary Evidence of Lawful Admission for Permanent R e s id e n c e ," which establishes that she lawfully entered the country in 2004. T h e government argues that the document is outside of the administrative r e c o r d and therefore not properly before us. We agree. "It is a bedrock principle o f judicial review that a court reviewing an agency decision should not go outside t h e administrative record." Goonsuwan v. Ashcroft, 252 F.3d 383, 390 n.15 (5th C i r . 2001) (citation omitted). We do not sit "as an administrative agency for the p u r p o s e of fact-finding in the first instance." Yahkpua v. Immigration and N a t u r a l iz a t io n Serv., 770 F.2d 1317, 1320 (5th Cir. 1985) (citation omitted). As

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No. 08-61111 Z a m o r a -V a lle j o has made no motion to supplement the administrative record w it h the I-551 stamp, we will not consider it.2 E v e n if we were to consider this document, it is far from certain that it w o u ld have had any impact on the decision to reinstate her removal order. As t h e government emphasizes in its brief, the name on the passport is "ZamoraB a lle jo ," which raises the question of whether this document does in fact belong t o Zamora-Vallejo. In order to obtain this stamp, Zamora-Vallejo must have c la im e d that she was eligible to obtain an I-551 Lawful Permanent Resident c a r d , but her removal in 1999 rendered her ineligible to receive this card. See 8 C.F.R. § 1.1(p) (providing that lawful permanent resident status "terminates u p o n entry of a final administrative order of exclusion, deportation, or removal"). A s s u m in g that Zamora-Vallejo had received this stamp through the error of the D H S -- a s opposed to fraud--her reentry was not lawful under § 1231(a)(5). See U n ite d States v. Trevino-Martinez, 86 F.3d 65, 67 (5th Cir. 1996) (affirming the c o n v ic t io n , under the criminal reentry statute, 8 U.S.C. § 1326, of an alien who h a d obtained a visa from the United States Consulate despite having been p r e v io u s ly deported); United States v. Leon-Leon, 35 F.3d 1428, 1430 (9th Cir. 1 9 9 4 ) (affirming the conviction for illegal reentry of an alien who had illegally r e e n te r e d the United States with a previously issued lawful permanent

Because we conclude that Zamora-Vallejo has failed to demonstrate actual prejudice with respect to her due-process claim, we decline to reach the question of whether, in appeals from reinstatement orders, due process requires us to consider material that is not part of the administrative record. However, we note that the Sixth and the Ninth Circuits have expressed concern that, because § 1231(a)(5) does not give aliens a right to place evidence into the administrative record, a court may have almost no record to review if the alien contests one of the predicates for removal. Bejjani v. Immigration and Naturalization Serv., 271 F.3d 670, 675­76 (6th Cir. 2001), abrogated on other grounds by Fernandez-Vargas v. Gonzales, 548 U.S. 30, 36 n.5 (2006); Castro-Cortez v. Immigration and Naturalization Serv, 239 F.3d 1037, 1049­50 (9th Cir. 2001), abrogated on other grounds by Fernandez-Vargas, 548 U.S. at 36 n.5; see also Gomez-Chavez v. Perryman, 308 F.3d 796, 802 (7th Cir. 2002) (reserving the question of "what kind of procedures" would be "necessary" for an alien who challenges the factual basis for reinstatement).

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Case: 08-61111

Document: 00511106697

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Date Filed: 05/11/2010

No. 08-61111 r e s id e n c e card). Section 1231(a)(5) applies to any alien found to have "reentered t h e United States illegally"; there is no qualifying language restricting r e in s ta te m e n t to only those aliens who enter illegally without inspection. Id. C . Due-Process Claim Z a m o r a -V a lle jo claims that the reinstatement proceedings violated her r ig h t to due process because she was not granted a hearing before an IJ. We r e v ie w due-process challenges de novo. De Zavala v. Ashcroft, 385 F.3d 879, 883 (5 t h Cir. 2004). An alien seeking to challenge removal proceedings on duep r o c e s s grounds must make "an initial showing of substantial prejudice." Anwar v . Immigration & Naturalization Serv., 116 F.3d 140, 144 (5th Cir. 1997) (c it a t io n omitted). Zamora-Vallejo contends that the removal order would not h a v e been reinstated if she had been allowed to submit the I-551 stamp as e v id e n c e of her lawful entry. We are hard pressed to see how Zamora-Vallejo c a n assert that the reinstatement proceedings did not allow her to present this e v id e n c e when she made no attempt to do so before her hearing officer. See M ille r v. Mukasey, 539 F.3d 159, 164 (2d Cir. 2008) ("[W]e now hold that when a n alien declines to challenge at the agency level the findings that support r e in s ta te m e n t of a prior order of removal, [she] has no grounds to complain in c o u r t that the reinstatement procedures deprived [her] of the due process of la w ."). Zamora-Vallejo also argues that her due-process rights were violated b e c a u se she was denied the opportunity to obtain discretionary waiver of r e m o v a l, which was formerly available under § 212(c) of the INA. This argument is unavailing. In order to prevail on a due-process claim, an alien must

d e m o n s t r a te that she has been denied a liberty or property interest warranting d u e -p r o c e s s protection. See Ahmed v. Gonzales, 447 F.3d 433, 440 (5th Cir. 2 0 0 6 ) . We have held that an alien does not have a due-process right to a d is c r e tio n a r y waiver of removal. United States v. Lopez-Ortiz, 313 F.3d 225, 231 6

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Document: 00511106697

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Date Filed: 05/11/2010

No. 08-61111 (5 th Cir. 2002) ("[Section] 212(c) relief, because it is available within the broad d is c r e tio n of the Attorney General, is not a right protected by due process."); see a l so Nguyen v. Dist. Dir., Bureau of Immigration & Customs Enforcement, 400 F .3 d 255, 259 (5th Cir. 2005). For the foregoing reasons, the petition for review is DENIED.

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