                                                                           F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                           AUG 27 2004
                                TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

 ALEJANDRO MENDEZ SUAREZ,

               Petitioner,                              No. 03-9578
          v.                                      (INS No. A75-289-953)
 MICHAEL COMFORT, District                         (Petition for Review)
 Director, Immigration and
 Naturalization Service; JAMES W.
 ZIGLAR, Commissioner, Immigration
 and Naturalization Service; and JOHN
 ASHCROFT, Attorney General of the
 United States,

               Respondents.


                             ORDER AND JUDGMENT         *




Before HARTZ , McKAY , and PORFILIO , Circuit Judges.


I.    BACKGROUND

      Petitioner Alejandro Mendez Suarez, a citizen of Mexico, was excluded and

deported from the United States on December 11, 1996, after attempting to enter

the country by providing counterfeit documents at a port of entry in El Paso,



      *
       This order and judgment is not binding precedent, except under the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.
Texas. He illegally reentered the United States in October 1999. In September

2002 Petitioner was arrested in Colorado on a domestic-violence charge. He was

released on bond but then taken into custody by the Immigration and

Naturalization Service (INS) 1. On September 30, 2002, the INS issued a “Notice

of Intent/Decision to Reinstate Prior Order.” It reinstated the December 11, 1996,

order under § 241(a)(5) of the Immigration and Nationality Act (INA), 8 U.S.C.

§ 1231(a)(5), on October 29, 2002. The next day Petitioner sought habeas relief

in the district court. Concluding that he was actually seeking direct review of the

reinstatement order, the district court transferred the case to this court under 28

U.S.C. § 1631.

      It is difficult to ascertain specifically what Petitioner is arguing in his brief.

As best we can determine, Petitioner contends that (1) the district court

improperly transferred the case to this court instead of granting habeas relief; (2)

the reinstatement of the prior order deprived him of due process because it caused

him to violate his bond and jeopardized his defense in the Colorado state

proceedings; (3) the reinstatement procedure set forth in INA § 241(a)(5), 8

U.S.C. § 1231(a)(5), should not have been applied to him because he voluntarily


      1
       On March 1, 2003, the INS ceased to exist as an agency within the
Department of Justice. Its enforcement functions were transferred to the
Department of Homeland Security. See Homeland Security Act of 2002, Pub. L.
No. 107-296, 116 Stat. 2135 (2002). Because the events at issue here predate that
reorganization, we continue to refer to the INS in this opinion.

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departed the United States before the statute’s effective date; (4) his prior

exclusion is not a bar to his right to adjust status under the LIFE Act, INA § 245,

8 U.S.C. § 1255; (5) he was denied due process in the prior deportation

proceedings; and (6) § 1231(a)(5) violates due process. To the extent that he

intended to raise additional issues, we decline to consider them due to his failure

to set forth a coherent argument. Cf. American Airlines v. Christensen, 967 F.2d

410, 415 n.8 (10th Cir. 1992) (“It is insufficient merely to state in one’s brief that

one is appealing an adverse ruling below without advancing reasoned argument as

to the grounds for the appeal.”); Drake v. City of Fort Collins, 927 F.2d 1156,

1159 (10th Cir. 1991) (even when a pro se plaintiff is involved, “the court will

not construct arguments or theories for the plaintiff”).

      We exercise jurisdiction to review the reinstatement order under INA

§ 242, 8 U.S.C. § 1252, see Duran-Hernandez v. Ashcroft, 348 F.3d 1158, 1162

n.3 (10th Cir. 2003), and affirm the decision of the INS.

II.   DISCUSSION

      A.     Transfer of this Case

      As an initial matter, we hold that the district court properly transferred the

case to this court. Petitioner apparently contends that the district court should

have granted him habeas relief instead of transferring the case. We agree with the

district court that Petitioner was actually attempting to challenge the INS’s


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reinstatement decision, which he should have done through a petition for review

to this court. See Duran-Hernandez, 348 F.3d at 1162. Because Petitioner could

have sought review of the reinstatement order in this court when he sought habeas

relief in the district court, the district court properly transferred the case under 28

U.S.C. § 1631. (The habeas petition was filed only one day after the

reinstatement decision, and this court has jurisdiction to review reinstatement

orders, Duran-Hernandez, 348 F.3d at 1162 n.3. )

      B.     State Criminal Proceeding

      Petitioner asserts that he was denied due process because his removal

caused him to violate the bond on which he was released and jeopardized his

defense in the Colorado criminal proceeding. But we cannot discern exactly what

relief Petitioner is seeking. Although he could perhaps seek relief through a

separate civil action or pursue the matter in the Colorado criminal proceeding, we

fail to see what relief we could grant in this case, in which our jurisdiction is only

to review the removal order. Because we can provide no relief, we need not

address the merits of the matter.

      To the extent that Petitioner is arguing that the prior exclusion order should

not have been reinstated while he was released on bond and facing criminal

charges, we reject the argument. For the order to have been properly reinstated,

the INS need only have found that Petitioner was “subject to a prior order of


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removal,” that he was “in fact an alien who was previously removed,” and that he

had “unlawfully reentered the United States.” See 8 C.F.R. § 241.8(a). The INS

was not required to consider whether reinstating the prior order would cause

Petitioner to violate bond or would forestall criminal proceedings.

      C.     Applicability of § 1231(a)(5)

      Petitioner argues that he voluntarily departed the United States prior to the

effective date of IIRIRA, which “should not trigger ‘reinstatement’” under

§ 1231(a)(5). Aplt. Br. at 4. He claims that reinstatement “was improper due to

the difference in the law between the date of his voluntary departure and the date

of the reinstatement and that the differences in the law caused [him] to rely on the

state of the law at the time that he entered into the voluntary departure.” Id. at 8.

According to Petitioner, “real knowledge of the potential effect of reinstatement

cannot be ascribed to [him] as ‘reinstatement’ (at the time that he took the

voluntary departure) never applied to voluntary departures and ‘reinstatement’

(prior to 1997) was applied by the [INS] only for the most extreme, violent or

socially reprehensible criminals who reentered.” Id. at 10 n.1.

      We first note that the record does not support Petitioner’s contention that

he voluntarily departed the United States in 1996. Instead, the record reveals that

he was ordered excluded and then deported. In any event, even if Petitioner left




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the country voluntarily after being ordered excluded, that departure would be

considered a deportation or removal. See 8 U.S.C. § 1101(g).

      Furthermore, we disagree with Petitioner to the extent that he is arguing

that application to him of the § 1231(a)(5) reinstatement procedure would have

been an improper retroactive application of the statute. The reinstatement

provision was enacted as part of the Illegal Immigration Reform and Immigrant

Responsibility Act (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009, on

September 30, 1996, and became effective on April 1, 1997. Although Petitioner

reentered the United States in October 1999, after the IIRIRA went into effect,

the initial exclusion order was entered on December 11, 1996, before the statute’s

effective date. (Petitioner asserts in his brief on appeal that he reentered the

United States within five days of his “voluntary departure” in 1996, which would

have been before IIRIRA’s effective date. See Aplt. Br. at 12 n.3. But in his

sworn statement during the reinstatement proceeding he stated that the last time

he entered the United States after his deportation was in October 1999.)

      We see no retroactive effect of the statute here. To be sure, if Petitioner’s

most recent entry into the country had predated the IIRIRA, there would be a

retroactivity issue. Compare Arevalo v. Ashcroft, 344 F.3d 1, 15 (1st Cir. 2003)

(§ 1231(a)(5) not applicable to alien who reentered before IIRIRA effective date),

Bejjani v. INS, 271 F.3d 670, 684-87 (6th Cir. 2001) (same), and Castro-Cortez v.


                                         -6-
INS, 239 F.3d 1037, 1051-52 (9th Cir. 2001) (same), with Velasquez-Gabriel v.

Crocetti, 263 F.3d 102, 106-109 (4th Cir. 2001) (§ 1231(a)(5) applies to alien

who reentered before IIRIRA effective date), and Ojeda-Terrazas v. Ashcroft, 290

F.3d 292, 299-302 (5th Cir. 2002) (same). But here the conduct at issue—the

unlawful reentry—postdated the statute’s effective date, so there is no retroactive

application of the statute. See Avila-Macias v. Ashcroft, 328 F.3d 108, 114 (3d

Cir. 2003) (“[a]pplying IIRIRA to [the petitioner]--an alien who was deported

prior to its effective date, but who reentered afterwards--does not have an

impermissible retroactive effect because the consequences of an illegal reentry at

the time that he reentered are the consequences he faces now”); Warner v.

Ashcroft, 2004 WL 1727075 at *3 (6th Cir. 2004) (because the petitioner

reentered the United States after IIRIRA’s effective date, there was “no pre-

enactment conduct sufficient to constitute a basis for a retroactivity claim,” and

the petitioner “was on notice of the consequences of his illegal reentry before he

chose to illegally reenter the United States”); Lopez v. Heinauer, 332 F.3d 507,

512 (8th Cir. 2003) (“[t]here can be no retroactive effect from applying IIRIRA’s

reinstatement procedures . . . where the statute was in effect at the time of [the]

illegal reentry”); Perez-Gonzalez v. Ashcroft, 2004 WL 1801894, *2 (9th Cir.

2004) (following Avila-Macias).




                                          -7-
      Accordingly, we reject Petitioner’s argument that the reinstatement

provision was improperly applied to him because he voluntarily departed the

country before its effective date.

      D.     Adjustment of Status

      Petitioner is apparently arguing that he was entitled to an adjustment of

status under the LIFE Act, INA § 245, 8 U.S.C. § 1255, and that the reinstatement

of the prior order interfered with his ability to obtain an adjustment of status. But

Petitioner states in his brief that he was previously denied an adjustment of status

because he was “barred by the 21 year age-out provisions.” Aplt. Br. at 15. He

has not demonstrated that he subsequently sought to adjust his status, and in any

event it is clear that he is ineligible for an adjustment of status. The LIFE Act

requires that applicants be “admissible to the United States for permanent

residence.” 8 U.S.C. § 1255(i)(2)(A); see Duran-Hernandez, 348 F.3d at 1160;

Padilla v. Ashcroft, 334 F.3d 921, 925 (9th Cir. 2003). Petitioner is, however,

inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i) because he previously sought

admission through misrepresentation. See Padilla, 334 F.3d at 925-26. Thus, to

the extent that Petitioner contends that the prior order should not have been

reinstated because he was entitled to an adjustment of status, we disagree.

      E.     Due Process




                                         -8-
      Petitioner contends that the reinstatement procedure set forth in 8 U.S.C.

§ 1231(a)(5) violates due process, and suggests that he was denied due process in

the original deportation proceedings. We lack jurisdiction to review the

underlying deportation order, see Garcia Marrufo v. Ashcroft, 376 F.3d 1061,

1063 (10th Cir. 2004); 8 U.S.C. § 1231(a)(5), and will therefore consider only

Petitioner’s argument regarding the reinstatement procedure.

      We need not, however, reach the merits of Petitioner’s reinstatement-

procedure due process claim because he cannot demonstrate that he was

prejudiced by the purported constitutional violation. An order of removal may be

reinstated when an immigration officer determines that (1) “the alien has been

subject to a prior order of removal”; (2) “the alien is in fact an alien who was

previously removed, or who departed voluntarily while under an order of

exclusion, deportation, or removal”; and (3) “the alien unlawfully reentered the

United States.” 8 C.F.R. § 241.8. Petitioner does not contest that he illegally

reentered the United States and does not argue that he is not in fact the subject of

the December 11, 1996, order of exclusion. Although he claims that he

voluntarily departed instead of being deported or removed (a contention that we

have rejected), his failure to contest that he was ordered excluded conclusively

establishes the first requirement for proper reinstatement of the 1996 order. See 8

U.S.C. § 1101(g); 8 C.F.R. § 241.8. Whatever process Petitioner contends was


                                         -9-
due would therefore not have affected the result in this case, and Petitioner is not

entitled to relief. See Duran-Hernandez v. Ashcroft, 348 F.3d at 1163.

III.   CONCLUSION

       We AFFIRM the decision of the INS.


                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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