     Case: 12-60350       Document: 00512341017         Page: 1     Date Filed: 08/14/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          August 14, 2013
                                       No. 12-60350
                                                                           Lyle W. Cayce
                                                                                Clerk
OMAR ALEJANDRO BANUELAS-PEREZ, also known as Omar Alejandro
Banuelas, also known as Omar Banuelas,

                                    Petitioner,
v.

JANET NAPOLITANO, SECRETARY, DEPARTMENT OF HOMELAND
SECURITY,

                                    Respondent.



                           Petition for Review of an Order
                      of the Department of Homeland Security
                               DHS No. A094 775 183



Before REAVLEY, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       Petitioner Omar Alejandro Banuelas-Perez (“Banuelas-Perez”) was
initially ordered removed from the United States in 2010 after he admitted that
he was convicted of an aggravated felony and was deportable on that basis. He
returned to the United States without authorization and the Department of
Homeland Security (“DHS”) determined that he was subject to removal through
reinstatement of the 2010 removal order. Banuelas-Perez filed a petition for

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                     No. 12-60350

review of the reinstatement order, challenging only the validity of the 2010
removal order. Because we lack jurisdiction to consider his collateral attack on
the 2010 removal order, we DISMISS his petition for review.
                                          I.
      Banuelas-Perez, a native and citizen of Mexico, entered into the United
States at an unknown time and place and was convicted of delivery of a
controlled substance in violation of Texas law in 2008. In 2010, DHS, pursuant
to 8 U.S.C. § 1228(b), issued a Notice of Intent to Issue a Final Administrative
Removal Order charging Banuelas-Perez as deportable because he had been
convicted of an aggravated felony, as that term is defined in 8 U.S.C.
§ 1101(a)(43)(B). Banuelas-Perez did not contest these charges and signed a
waiver which states the following:
      I admit the allegations and charge in this Notice of Intent. I admit
      that I am deportable and acknowledge that I am not eligible for any
      form of relief from removal. I waive my right to rebut and contest
      the above charges. I do not wish to request withholding or deferral
      of removal. I wish to be removed to Mexico.
      I understand that I have the right to remain in the United States for
      14 calendar days in order to apply for judicial review. I do not wish
      this opportunity. I waive this right.
That same day, DHS issued a Final Administrative Removal Order, ordered
Banuelas-Perez removed, and deported him to Mexico.
      At some time thereafter, Banuelas-Perez returned to the United States
without authorization. He was arrested and, eventually, DHS issued a Notice
of Intent/Decision to Reinstate Prior Order. A supervisory officer determined
that Banuelas-Perez was subject to removal through reinstatement of the 2010
removal order and ordered him removed to Mexico. Banuelas-Perez filed a
petition for review in this court.
                                         II.
      Banuelas-Perez seeks review of his reinstatement order solely on the
ground that the already-executed and final 2010 removal order is invalid. In

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                                       No. 12-60350

these circumstances, we have jurisdiction to “review the validity of the
underlying removal order only if [the petitioner] establishes that there was a
gross miscarriage of justice in the initial proceedings.” Ramirez–Molina v.
Ziglar, 436 F.3d 508, 514 (5th Cir. 2006). Respondent maintains that we lack
jurisdiction to review the validity of Banuelas-Perez’s underlying 2010 removal
order because he has failed to establish that there was a gross miscarriage of
justice in those proceedings. We agree.
       Although we have not yet developed “a precise standard for what
constitutes a gross miscarriage of justice sufficient to allow us to consider the
merits of a petitioner’s collateral attack on a removal order,” id., a conclusion
that a gross miscarriage of justice has occurred is “rare.”                    Lara v. E.M.
Trominski, 216 F.3d 487, 493 (5th Cir. 2000) (noting that the Fifth Circuit “has
never allowed an immigrant’s collateral challenge to his prior deportation order
on the basis of a gross miscarriage of justice”). Banuelas-Perez maintains that
he meets this high standard because DHS officials allegedly did not inform him
of the specific conviction that qualified as an aggravated felony.2                       This
assertion—even if accepted as true—fails to meet the high standard required for
us to conclude that a gross miscarriage of justice occurred.
       While it is unclear from the record exactly what information DHS officials
provided to Banuelas-Perez relating to his 2008 Texas conviction, it is
undisputed that he was informed of the following charges: “You are deportable
under section 237(a)(2)(A)(iii) of the Act, U.S.C. 1227(a)(2)(A)(iii), as amended,
because you have been convicted of an aggravated felony as defined in section


       2
          Banuelas-Perez also maintains that his 2008 Texas conviction for delivery of a
controlled substance is not categorically an aggravated felony and, therefore, would not have
supported his expedited removal. We need not reach this underlying merits question,
however, unless Banuelas-Perez successfully demonstrates that a gross miscarriage of justice
occurred in the removal proceedings. See, e.g., Ramirez–Molina, 436 F.3d at 515 (explaining
that it is “unnecessary to discuss the merits of” a petitioner’s collateral challenge to the
validity of the initial removal order if the petitioner “cannot establish that there was a gross
miscarriage of justice in those proceedings”).

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101(a)(43)(B) of the Act, 8 U.S.C. 1101(a)(43)(B).” Accordingly, it is undisputed
that Banuelas-Perez was given reasonable notice of the charges.
      Banuelas-Perez contends, however, that DHS failed to comply with all
regulations applicable to the 8 U.S.C. § 1228 expedited removal process. Based
on our review of the regulations cited by Banuelas-Perez, we are unconvinced
that a violation occurred in his 2010 removal proceedings, much less an error
significant enough to constitute a gross miscarriage of justice. Importantly, one
regulation Banuelas-Perez cites requires the immigration official, not the
individual who is the subject of the proceedings, to confirm that there is
sufficient evidence to support a finding that the charged individual has been
convicted of an aggravated felony based on any of the appropriate records. See
8 C.F.R. § 238.1(b). Therefore, it is not a violation of § 238.1(b) if the charged
individual does not personally view the records supporting the finding that the
charged individual was convicted of an aggravated felony. Also, the applicable
regulations, and the form Banuelas-Perez signed, explicitly allow an alien to
request the opportunity to review the evidence supporting the charges. Id.
§ 238.1(c)(ii) (“If an alien’s written response requests the opportunity to review
the Government’s evidence, the Service shall serve the alien with a copy of the
evidence in the record of proceeding upon which the Service is relying to support
the charge.”). Banuelas-Perez did not request the opportunity to review the
evidence supporting the charges against him. Accordingly, DHS’s alleged failure
to provide Banuelas-Perez with the opportunity to review the evidence—in the
absence of a request to do so—does not constitute a gross miscarriage of justice.
      Moreover, even if a violation of the applicable regulations did occur in
Banuelas-Perez’s 2010 removal proceedings, his waiver of his right to challenge
the allegations in those proceedings is a “critical factor” in considering whether
a gross miscarriage of justice occurred. Lara, 216 F.3d at 494 (“[W]aivers are a
critical factor in denying claims that deportation proceedings constituted a gross
miscarriage of justice.”); see also Ramirez–Molina, 436 F.3d at 515 (relying on

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the petitioner’s failure to contest his removability in the initial proceedings to
conclude that the petitioner was unable to establish that there was a gross
miscarriage of justice). Banuelas-Perez’s failure to contest his removability in
the 2010 removal proceedings, combined with an absence of any suggestion that
he was prevented from exercising his rights to contest that determination,
weighs decidedly against a conclusion that a gross miscarriage of justice
occurred in the 2010 removal proceedings.
                                       III.
      Accordingly, we DISMISS Banuelas-Perez’s petition for review for want
of jurisdiction.




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