                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                        UNITED STATES CO URT O F APPEALS
                                                                           July 14, 2006
                              FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                           Clerk of Court

    D A G O BER TO IB AR RA ,

               Petitioner,

      v.                                                     No. 05-9589
                                                          (No. A-95-590-416)
    ALBERTO R. GONZALES, Attorney                        (Petition for Review)
    General,

               Respondent.



                                OR D ER AND JUDGM ENT *


Before HA RTZ, A ND ER SO N, and TYM KOVICH, Circuit Judges.




           Dagoberto Ibarra, a native and citizen of M exico, petitions for review of

the reinstatement of a prior order of deportation under Immigration and

Nationality Act (INA) § 241(a)(5), 8 U.S.C. § 1231(a)(5). W e have jurisdiction

to review the reinstatement order under INA § 242, 8 U.S.C. § 1252, see




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
Duran-H ernandez v. Ashcroft, 348 F.3d 1158, 1162 n.3 (10th Cir. 2003), and w e

D EN Y the petition for review .

      M r. Ibarra has an extensive history of entering illegally and being expelled

from the United States. As is relevant to this appeal, he was deported on June 23,

1978. He reentered illegally a month later, was imprisoned for 179 days, and was

allowed to return to M exico under voluntary departure w ith safeguards in January

1979. M r. Ibarra reentered at least twice more, in 1979 and 1980. The record is

not clear, but it appears that on each occasion he w as afforded voluntary

departure upon serving prison time for illegal reentry. After his 1980

imprisonment, M r. Ibarra apparently remained in M exico until M ay 28, 1999,

when he again illegally entered this country.

      M r. Ibarra sought to legalize his status by filing an application for

adjustment of status and a I-212 application for permission to reapply for

admission into the United States. Adjustment of status was denied on the ground

that M r. Ibarra was subject to reinstatement of the 1978 deportation order. The

government then reinstated the 1978 deportation order and ordered M r. Ibarra

removed.

      Section 1231(a)(5) provides:

      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 is not subject to being reopened
      or reviewed, the alien is not eligible and may not apply for any relief

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         under this chapter, and the alien shall be removed under the prior
         order at any time after the reentry.

M r. Ibarra does not contest any of the three conditions for reinstating a

deportation order. See Duran-Hernandez, 348 F.3d at 1162-63 (removal order

may be reinstated upon showing that alien (1) w as subject to prior removal order,

(2) is the same alien who was removed, and (3) illegally reentered this country).

Instead, he argues that § 1231(a)(5) is not applicable to him because his most

recent departures from this country were voluntary departures rather than

deportations. This issue is one of statutory construction, so it is reviewed de

novo. Robbins v. Chronister, 435 F.3d 1238, 1240 (10th Cir. 2006) (en banc).

         Section 1231(a)(5) applies to aliens who reenter after (1) having been

removed, or (2) having departed voluntarily, under an order of removal.

M r. Ibarra essentially contends that the statute applies only to the alien’s most

recent departure. He distinguishes his voluntary departures from self-removal,

suggesting that § 1231(a)(5) “appl[ies] only to individuals whose departures

would be considered pursuant to an order of removal rather than those whose

departures would be considered under a grant of voluntary departure.” A plt. Br.

at 14.

         W e disagree. M r. Ibarra is an alien who reentered this country illegally

after having been deported, and therefore § 1231(a)(5) plainly applies to him.

M r. Ibarra does not cite, and we have not found, any authority indicating that his



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subsequent departures vitiated the 1978 deportation order. Because M r. Ibarra

falls under the first category of aliens subject to reinstatement under § 1231(a)(5),

we need not analyze whether his voluntary departures are distinguishable from a

situation in which an alien “departed voluntarily, under an order of removal.”

      M r. Ibarra generally concedes that applying § 1231(a)(5) to him is not

impermissibly retroactive. See Fernandez-Vargas v. Gonzales, No. 04-1376, __

S. Ct. __, 2006 W L 1698970, at *8-9 (U.S. June 22, 2006) (§ 1231(a)(5) is not

impermissibly retroactive even when an alien reentered the U nited States before

the statute’s effective date). But he sets forth an alternate due process argument

that, because his extended absence from the United States would satisfy the 10-

year-absence requirement for admissibility under INA § 212(a)(9)(C),

8 U.S.C. § 1182(a)(9)(C), applying § 1231(a)(5) to him would unconstitutionally

deny him the benefits of the voluntary departures and impose on him “the

disabilities associated with an order of deportation.” Aplt. Br. at 25. Again,

however, his subsequent voluntary departures did not negate his 1978 order of

deportation or otherw ise relieve M r. Ibarra of any disabilities associated with it.

Applying § 1231(a)(5) to M r. Ibarra is not impermissibly retroactive or otherwise

a violation of due process.

      Finally, M r. Ibarra argues that he is admissible because he stayed out of the

United States for more than the 10 years required by § 1182(a)(9)(C)(ii). But this

provision requires an alien to obtain the A ttorney General’s permission to return

                                           -4-
before the alien attempts to enter this country, and M r. Ibarra did not seek such

permission. In any event, the reinstatement of the deportation order under

§ 1231(a)(5) renders M r. Ibarra ineligible for adjustment of status or I-212 relief.

See 8 U.S.C. § 1231(a)(5); Berrum-Garcia v. Com fort, 390 F.3d 1158, 1163 (10th

Cir. 2004).

      This court’s stay orders dated October 26, 2005, and November 30, 2005,

are V A CA TED , and the petition for review is DENIED.



                                                     Entered for the Court


                                                     Harris L Hartz
                                                     Circuit Judge




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