Eliseo Ovalle-Ruiz v. Eric Holder, Jr., et al

Filing

OPINION filed : Because we do not have jurisdiction to review the underlying removal order and because immigration officers did not improperly reinstate the removal order, we DENY Ovalle-Ruiz's petition for review; decision not for publication. Alan E. Norris, Karen Nelson Moore (Authoring), and Julia Smith Gibbons, Circuit Judges.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0882n.06
No. 14-3130
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

ELISEO OVALLE-RUIZ,
Plaintiff-Appellee,
v.
ERIC H. HOLDER, JR., United States
Attorney General,
Defendant-Appellant.

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FILED
Nov 21, 2014
DEBORAH S. HUNT, Clerk

ON PETITION FOR REVIEW
OF A FINAL ORDER OF THE
BOARD OF IMMIGRATION
APPEALS

OPINION

BEFORE: NORRIS, MOORE, and GIBBONS, Circuit Judges
KAREN NELSON MOORE, Circuit Judge. Immigration officers arrested Petitioner
Eliseo Ovalle-Ruiz for being in the United States unlawfully and, that same day, reinstated a
prior order of removal from December 2001.

In this appeal, Ovalle-Ruiz contests the

government’s reinstatement of the December 2001 removal order, arguing that reinstatement was
improper because the underlying removal order violated his due process rights and because
immigration officers failed to exercise properly their discretion by reinstating the prior removal
order without first considering factors favorable to Ovalle-Ruiz. Because we do not have
jurisdiction to review the underlying removal order and because immigration officers did not
improperly reinstate the removal order, we DENY Ovalle-Ruiz’s petition for review.

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I. FACTUAL AND PROCEDURAL HISTORY
Eliseo Ovalle-Ruiz is a native and citizen of Mexico. Administrative Record (“A.R.”) at
8 (Form I-213 at 2). On December 17, 2001, immigration authorities apprehended Ovalle-Ruiz
for being in the United States unlawfully and notified him that he was subject to removal
pursuant to Immigration and Nationality Act § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i).
A.R. at 18 (Notice to Appear at 1); A.R. at 16 (Stipulated Req. for Removal Ord. and Waiver of
Hr’g at 4). That same day, Ovalle-Ruiz signed a Stipulated Request for Removal Order and
Waiver of Hearing (“Stipulated Request”) in which Ovalle-Ruiz agreed, among other things, that
by signing the Stipulated Request: he would be promptly removed from the United States; he
waived his right to counsel, to appear before an immigration judge, and to appeal; he read the
document in Spanish and understood its consequences; and he requested removal “voluntarily,
knowingly, and intelligently.” A.R. at 13‒17 (Stipulated Req. for Removal Ord. and Waiver of
Hr’g at 1‒5). The Stipulated Request was written in English and Spanish. Ovalle-Ruiz also
signed a form titled “Notificación De Derechos,” or “Notice of Rights,” which set forth in
Spanish that he had a right to a hearing, to contact an attorney, and to communicate with
diplomatic officers. A.R. at 20 (Notificación De Derechos); see also Respondent Br. Addendum
(Notice of Rights). Ovalle-Ruiz initialed the box on the form indicating that he was in the
United States illegally, he gave up his right to a hearing, and he wished to be returned to Mexico.
Id. Without holding a hearing, an immigration judge granted the Stipulated Request and ordered

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Ovalle-Ruiz removed to Mexico on December 27, 2001. A.R. at 11 (Order Granting Stipulated
Removal).
Over the next two years, Ovalle-Ruiz was arrested by immigration authorities three more
times for illegally entering the United States. A.R. at 9 (Form I-213 at 2). The government
allowed Ovalle-Ruiz to return voluntarily to Mexico following two arrests in the fall of 2002. Id.
But, after his arrest in March 2004, the government notified Ovalle-Ruiz that it intended to
reinstate the December 2001 removal order rather than grant a voluntary return. A.R. at 24 (Not.
of Intent/Decision to Reinstate Prior Ord.). On March 18, 2004, Ovalle-Ruiz declined to make a
statement contesting the government’s decision to reinstate the December 2001 removal order,
id., and he was removed to Mexico.
On January 17, 2014, immigration officers again apprehended Ovalle-Ruiz. Ovalle-Ruiz
told immigration officers that he is married and has a child who is a U.S. citizen but admitted
that he was in the United States illegally. A.R. at 8‒9 (Form I-213 at 1‒2). The government
notified Ovalle-Ruiz that it intended to again reinstate the December 2001 removal order. A.R.
at 1 (Not. of Intent/Decision to Reinstate Prior Ord.). Ovalle-Ruiz was informed that he could
contest the government’s decision to reinstate the prior removal order to an immigration officer.
Id. But rather than do so, Ovalle-Ruiz wrote “Refused to Sign” on the form asking whether he
wished to make a statement contesting the government’s determination. Id. In response to his
January 17, 2014 arrest, the government also filed a criminal complaint against Ovalle-Ruiz for
illegal reentry pursuant to 8 U.S.C. § 1326, and a grand jury indicted him on that charge. Shortly

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after Ovalle-Ruiz filed a motion to dismiss the indictment, which attacked the constitutionality of
the December 2001 removal order, the government also moved to dismiss the indictment. The
district court granted the government’s motion to dismiss.
Ovalle-Ruiz now appeals the government’s decision to reinstate the December 2001
removal order.
II. ARGUMENT
On appeal, Ovalle-Ruiz’s main argument is that the government improperly reinstated the
underlying December 2001 removal order because the removal order violated his due process
rights. Ovalle-Ruiz argues that, because he could not speak or read English, he had difficulties
reading Spanish, and the immigration judge did not inquire whether Ovalle-Ruiz knowingly and
voluntarily waived his rights, the underlying removal order was fundamentally unfair. OvalleRuiz also argues that the government failed to provide him an opportunity to submit evidence
challenging the lawfulness of the underlying removal order and did not properly exercise its
discretion prior to reinstating the order. In response, the government asserts that we do not have
jurisdiction to address the underlying removal order and immigration officers properly reinstated
the prior removal order.
First, we agree with the government that we do not have jurisdiction to review the
December 2001 removal order. We have jurisdiction to review final orders of removal, and we
treat reinstatement orders the same as removal orders for purposes of our jurisdiction. 8 U.S.C.
§ 1252(a)(5); Villegas De La Paz v. Holder, 640 F.3d 650, 653 (6th Cir. 2010). Generally, a

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“prior order of removal is reinstated from its original date and is not subject to being reopened or
reviewed.” 8 U.S.C. § 1231(a)(5). But, through 8 U.S.C. § 1252, Congress created an exception
to this jurisdictional limitation, which states: “Nothing in subparagraph (B) or (C), or in any
other provision of this chapter (other than this section) which limits or eliminates judicial review,
shall be construed as precluding review of constitutional claims or questions of law raised upon a
petition for review filed with an appropriate court of appeals in accordance with this section.”
8 U.S.C. § 1252(a)(2)(D). Thus, “§ 1252(a)(2)(D) re-vests the circuit courts with jurisdiction
over constitutional claims or questions of law raised in the context of reinstatement
proceedings.” Villegas, 640 F.3d at 656.
Ovalle-Ruiz would have us end the jurisdictional inquiry here. But the language in
§ 1252(a)(2)(D) contains a relevant limitation—it makes clear that our jurisdiction to review
“constitutional claims or questions of law” in removal proceedings is not cabined by
“subparagraphs (B) and (C)” in § 1252(a)(2) or “any other provision of this chapter (other than
this section).” 8 U.S.C. § 1252(a)(2)(D) (emphasis added). This means that “the savings clause
in § 1252(a)(2)(D) permitting review of [constitutional or legal] claims does not apply to
jurisdictional limitations within that section.” Juarez-Chavez v. Holder, 515 F. App’x 463, 465
(6th Cir. 2013) (emphasis and alteration in original) (quoting Cordova–Soto v. Holder, 659 F.3d
1029, 1031 (10th Cir. 2011), cert. denied, ––– U.S. ––––, 133 S. Ct. 647 (2012)); Garcia de
Rincon v. Dep’t of Homeland Sec., 539 F.3d 1133, 1138 (9th Cir. 2008) (“Section 1252(a)(2)(D)
does not apply to the jurisdictional limitations codified elsewhere in § 1252.”) (emphasis in

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original); Hussain v. Keisler, 505 F.3d 779, 784 (7th Cir. 2007) (“Section 1252(a)(2)(D) plainly
states that other limitations on judicial review in ‘this section’—that is, section 1252—still
apply.”).
This is important because § 1252 contains a number of jurisdictional limitations (other
than in subparagraphs (B) and (C)). Relevant here, § 1252(b)(1) states that a petition to review
an order of removal “must be filed not later than 30 days after the date of the final order of
removal.”

8 U.S.C. § 1252(b)(1).

The thirty-day time limit is “both mandatory and

jurisdictional.” Prekaj v. INS, 384 F.3d 265, 267 (6th Cir. 2004) (internal quotation marks
omitted). As a result, a petitioner “cannot collaterally attack the underlying order if he failed to
seek review of that order in accordance with § 1252(b)(1).” Juarez-Chavez, 515 F. App’x at
466; Verde-Rodriguez v. Attorney Gen. U.S., 734 F.3d 198, 202 (3d Cir. 2013) (“[T]he thirty-day
time limit set forth in § 1252(b)(1) is not altered by § 1252(a)(2)(D).”). Here, Ovalle-Ruiz did
not appeal the December 2001 removal order until he raised this challenge almost thirteen years
later. We thus do not have jurisdiction to review the constitutionality of the underlying removal
order. See Juarez-Chavez, 515 F. App’x at 466 (holding that the court had no jurisdiction to
resolve the constitutionality of a reinstated 2006 stipulated removal order)1; Cordova-Soto,

1

We noted in Juarez-Chavez that 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).” 515 F. App’x at 467. Ovalle-Ruiz does not raise such a
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659 F.3d at 1032 (“[B]ecause Ms. Cordova–Soto failed to file her petition for review within
thirty days of her 2005 removal order, we lack jurisdiction to review that order, including
constitutional claims or questions of law.”); Verde-Rodriguez, 734 F.3d at 202‒03 (thirty-day
clock starts at filing of original removal order not filing of reinstatement order).
We do have jurisdiction, however, to review a challenge to the reinstatement order.
8 U.S.C. § 1252(a)(5); Villegas, 640 F.3d at 653. Relying on Villa-Anguiano v. Holder, 727 F.3d
873 (9th Cir. 2013), Ovalle-Ruiz argues that immigration officers failed to exercise their
discretion because they reinstated the December 2001 removal order without “consider[ing] all
of the favorable and unfavorable factors relevant to the exercise of its discretion.” Petitioner Br.
at 23‒25. In particular, Ovalle-Ruiz asserts that the government should have considered his
marriage to a U.S. citizen, their five-year old U.S. citizen daughter, his lengthy residence in the
U.S. without any real criminal history, and the dismissal of the illegal reentry indictment by the
district court, in which Ovalle-Ruiz raised the due process violations that occurred during the
underlying removal proceedings. Id. at 23‒24 (citing Villa-Anguiano).
These arguments have no merit. If the government determines that an alien has illegally
reentered after having been removed, the prior removal order “is not subject to being reopened or
reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the
alien shall be removed under the prior order at any time after the reentry.”

8 U.S.C.

challenge here. Moreover, as noted above, he failed to contest the government’s decision to
reinstate the same 2001 removal when he was previously removed in 2004. See A.R. at 24 (Not.
of Intent/Decision to Reinstate Prior Ord.).
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§ 1231(a)(5). The implementing regulations similarly state that an alien who illegally reenters
after removal “shall be removed” by reinstating the prior order, and “[t]he alien has no right to a
hearing before an immigration judge in such circumstances.” 8 C.F.R. § 241.8(a) (emphasis
added); Villegas, 640 F.3d at 655; cf. 8 U.S.C. § 1229a(b)(4) (describing an alien’s rights in the
original removal proceedings, including a right to counsel, to present evidence, and to crossexamine government witnesses, among others).

Prior to reinstating a removal order, the

government must simply “advise the alien that he or she may make a written or oral statement
contesting the determination,” and “consider whether the alien’s statement warrants
reconsideration of the determination.”2 8 C.F.R. § 241.8(b).
Here, the government notified Ovalle-Ruiz that he could contest the government’s
decision to reinstate the December 2001 removal order, and Ovalle-Ruiz “Refused to Sign” the
portion of the document indicating whether he would contest the decision. A.R. at 1 (Not. of
Intent/Decision to Reinstate Prior Ord.). And he does not challenge the sufficiency of the above
statutory scheme. Moreover, when Ovalle-Ruiz was previously given the opportunity to contest
reinstatement of the December 2001 removal proceedings following his 2004 arrest, he expressly
declined to do so. See A.R. at 24 (Not. of Intent/Decision to Reinstate Prior Ord.). In any event,
although Ovalle-Ruiz now argues that the government failed to consider certain factors relevant

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The government must also determine whether the alien has been subject to a prior order
of removal, identify the alien, determine whether the alien unlawfully reentered the United
States, and provide written notice that the alien is subject to removal. 8 C.F.R. § 241.8(a)‒(b).
Ovalle-Ruiz does not argue that the government failed to satisfy these requirements.

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to the reinstatement determination, he failed to put those factors before the government by
challenging reinstatement of the prior removal order.3
Contrary to Ovalle-Ruiz’s claim, Villa-Anguiano does not save his claim. In VillaAnguiano, the court assessed whether reinstatement proceedings accorded the petitioner adequate
due process after the petitioner successfully challenged the underlying removal order as part of a
§ 1326 prosecution. 727 F.3d at 876‒77 n.1. In that case, the government notified the petitioner
that it would reinstate a prior removal order, but before the actual removal, decided to prosecute
the petitioner for illegal reentry. Id. at 876. In the illegal reentry proceedings, a district court
found the underlying removal order invalid as a predicate for prosecution because Villa’s due
process rights were violated in the proceedings giving rise to the underlying removal order. Id.
at 876‒77. Then, the day after dismissal of the criminal complaint, the government reinstated the
prior removal order without providing the petitioner an opportunity to raise this new evidence.
Id. at 879. The Ninth Circuit rejected this approach, holding that when the government invites
judicial scrutiny of an underlying removal order under § 1326, and “a district court finds
constitutional infirmities in the prior removal proceedings that invalidate the prior removal for
purposes of criminal prosecution, the agency cannot simply rely on a pre-prosecution
determination to reinstate the prior removal order.” Id. at 880.
3

Notably, the record indicated that Ovalle-Ruiz is married and has a child who is a United
States citizen, it included his limited criminal history and the length of time he had been in the
United States, and an immigration officer certified that he reviewed this evidence. A.R. at 8‒9
(I-213 Form at 1‒2); A.R. at 1 (Not. of Intent/Decision to Reinstate Prior Ord.). So OvalleRuiz’s argument that the government failed to consider these factors has no merit. See Petitioner
Br. at 23‒24.
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But that is not the case here.

True, like Villa-Anguiano, the government initially

attempted to prosecute Ovalle-Ruiz for illegal reentry, and Ovalle-Ruiz moved to dismiss the
indictment on the ground that the underlying removal proceedings were unconstitutional. See
United States v. Ovalle-Ruiz, 14-cr-20137, Dkt. No. 12 (E.D. Mich.).4 But the government also
moved to dismiss the indictment because “the ends of justice would best be served by this
dismissal,” id. at Dkt. No. 13, and the district court dismissed the indictment “for the reasons
stated in the government’s motion,” id. at Dkt. No. 14. So, unlike Villa-Anguiano, the district
court did not conclusively “invalidate the prior removal” because of “constitutional infirmities”
and, no “facts found [or] [] legal conclusions reached in the course of the criminal case” bear on
the underlying removal proceedings that were reinstated by the government here.

Villa-

Anguiano, 727 F.3d at 880. Consequently, Ovalle-Ruiz’s challenge fails.
III. CONCLUSION
Because we do not have jurisdiction to review the underlying removal order and because
immigration officers did not improperly reinstate the removal order, we DENY Ovalle-Ruiz’s
petition for review.

4

We take judicial notice of the criminal proceedings against Ovalle-Ruiz. See Chase
Bank USA, N.A. v. City of Cleveland, 695 F.3d 548, 553 n.2 (6th Cir. 2012) (“We can take
judicial notice of developments in related proceedings in other courts of record.”) (internal
quotation marks omitted).
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