    14-1181-ag
    Familia v. Holder
                                                                               A072 364 942

                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

         At a stated term of the United States Court of Appeals for
    the Second Circuit, held at the Thurgood Marshall United States
    Courthouse, 40 Foley Square, in the City of New York, on the
    4th day of March, two thousand fifteen.

    PRESENT:
             ROSEMARY S. POOLER,
             ROBERT D. SACK,
             CHRISTOPHER F. DRONEY,
                  Circuit Judges.
    _____________________________________

    REYES FAMILIA, AKA JHONNY ALGARIN,
    AKA FELIX BUENO, AKA FELIX A.
    PEREZ, AKA FELIX A. PEREZBUENO,
    AKA RAFAEL ROMERO, AKA JHONNY
    SAEZ, AKA RAFAEL REYES FAMILIA,

                              Petitioner,

                        v.                                           14-1181-ag

    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,

                  Respondent.
    _____________________________________

    FOR PETITIONER:                     Michael J. Campise, Ferro & Cuccia,
                                        New York, N.Y.
FOR RESPONDENT:           Edward E. Wiggers, Trial Attorney,
                          Office of Immigration Litigation,
                          (Joyce R. Branda, Acting Assistant
                          Attorney General, Civil Division,
                          Mary J. Candaux, Assistant Director,
                          Office of Immigration Litigation, on
                          the brief), United States Department
                          of Justice, Washington, D.C.


    UPON DUE CONSIDERATION of this petition for review of the

U.S. Department of Homeland Security’s (“DHS”) reinstatement

of a prior deportation order, it is hereby ORDERED, ADJUDGED,

AND DECREED that the petition for review is DENIED.



    Petitioner Reyes Familia, a native and citizen of the

Dominican Republic, seeks review of DHS’s February 26, 2014

decision to reinstate his prior order of deportation.         We

assume the parties’ familiarity with the underlying facts and

procedural history in this case.

      “If the Attorney General finds that an alien has reentered

the United States illegally after having been removed . . . under

an order of removal, the 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).    After determining

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that    an    alien   is   subject   to    reinstatement,     but   before

reinstating the prior order of removal, DHS is required to

afford the alien an opportunity to contest the immigration

officer’s findings through a formal oral or written statement,

“which       the   officer    must       then   take   into    account.”

Garcia-Villeda v. Mukasey, 531 F.3d 141, 149-50 (2d Cir. 2008);

See 8 C.F.R. § 241.8(b).1       Familia contends that DHS denied him

due process in reinstating his deportation order.

       Here, a DHS immigration officer determined that Familia was

an alien previously removed under a 1994 deportation order and

that he reentered the United States without authorization.             The

record reveals, and the government concedes, that a DHS

supervisory deportation officer prematurely completed, signed,

and dated the reinstatement form before Familia was in DHS

custody and before he was permitted a chance to contest the

officer’s findings.          Although Familia did not acknowledge


1
 “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.” 8 C.F.R. § 241.8(b).
                                     3
receipt of notice of the officer’s determination until April

11, 2014, the officer apparently certified on February 26, 2014,

to “[h]aving reviewed . . . any statements made or submitted

in rebuttal” to the reinstatement determination.

    The government notes that it “afford[ed] Familia the

opportunity to make a statement prior to attempting to enforce

the order” (emphasis added).        That is not the process the

regulations provide for aliens subject to reinstatement orders.

Indeed, in upholding the constitutionality of the expedited

reinstatement process under 8 C.F.R. § 241.8, we considered the

requirement of notice and an opportunity to respond among the

“procedural safeguards” ensuring an alien is afforded due

process.    See Garcia-Villeda, 531 F.3d at 149-50.

    However, “[p]arties claiming denial of due process in

immigration cases must, in order to prevail, allege some

cognizable prejudice fairly attributable to the challenged

process.”    Id. at 149 (internal quotation marks and citations

omitted).    “[W]hen an alien declines to challenge at the agency

level the findings that support reinstatement of a prior order

of removal, he has no grounds to complain in court that the

reinstatement procedures deprived him of the due process of
                                4
law.”   Miller v. Mukasey, 539 F.3d 159, 164 (2d Cir. 2008).

    When provided an opportunity to contest the officer’s

reinstatement determination, Familia signed a form indicating

that he did not wish to do so.    His failure to contest DHS’s

factual findings at the agency level was equivalent to a

concession of their accuracy.     See Miller, 539 F.3d at 164

(finding “no meaningful difference between conceding the

predicate facts, on the one hand, and choosing not to contest

them, on the other”).   Accordingly, Familia cannot establish

that he was prejudiced by any procedural deficiencies, and his

due process claim fails as a result.    See id.

    For the foregoing reasons, the petition for review is

DENIED.

                            FOR THE COURT:
                            Catherine O=Hagan Wolfe, Clerk




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