                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                December 6, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                              FOR THE TENTH CIRCUIT


    JOEL RUELAS-RIOS,

                Petitioner,
                                                        No. 11-9523
    v.                                              (Petition for Review)

    ERIC H. HOLDER, JR.,
    United States Attorney General,

                Respondent.


                              ORDER AND JUDGMENT *


Before TYMKOVICH, Circuit Judge, BRORBY, Senior Circuit Judge, and
EBEL, Circuit Judge.



         Joel Ruelas-Rios petitions for review of the Department of Homeland

Security’s (DHS) March 1, 2011, order reinstating his prior removal order under

8 U.S.C. § 1231(a)(5). We deny the petition for review.




*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                         I.

      Mr. Ruelas-Rios is a native and citizen of Mexico. He applied for

admission to the United States on March 13, 1998, by falsely representing himself

as a lawful permanent resident of the United States. On that date Mr. Ruelas-Rios

presented another person’s valid Resident Alien Card at the border.

      The former Immigration and Naturalization Service determined that he was

inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i), as an alien who, by fraud or

willfully representing a material fact, sought to procure admission to the United

States. Mr. Ruelas-Rios was removed from the United States the same day,

March 13, 1998, under the expedited removal procedures in 8 U.S.C.

§ 1225(b)(1). He departed the United States after signing a form warning him

that he was prohibited from entering, attempting to enter, or being in the United

States for a period of five years from the date of his removal, as a consequence of

having been found inadmissible as an arriving alien.

      On February 24, 2011, Mr. Ruelas-Rios was detained in Wichita, Kansas,

as he was attempting to enter McConnell Air Force Base to perform work as a

contractor. An agent with Immigration and Customs Enforcement interviewed

Mr. Ruelas-Rios, asking him if he was legally present in the United States. He

replied “no.” Admin. R. at 16. The agent determined that Mr. Ruelas-Rios had

been previously removed from the United States and also obtained evidence that

he had received traffic citations in Wichita in 1999 and 2000.

                                        -2-
      DHS issued Mr. Ruelas-Rios notice of its intent to reinstate his prior

removal order, on the basis that he was removable under 8 U.S.C. § 1231(a)(5) as

an alien who illegally reentered the United States after having been previously

removed on March 13, 1998. The notice further informed him that he could

contest DHS’s determination by making a written or oral statement to an

immigration officer. Mr. Ruelas-Rios, who was represented by counsel, declined

to make any statement. After reviewing all the available evidence, an

immigration officer determined on March 1, 2011, that he was subject to removal

through reinstatement of his prior removal order.

      Mr. Ruelas-Rios petitions for review of DHS’s reinstatement order, raising

a single contention: whether reinstatement of a prior removal order, without

providing the alien a hearing before an immigration judge, is a violation of due

process when the alien was also denied a hearing in connection with the prior

removal order and has been in the United States for an extended period of time.

                                        II.

      “[W]e have jurisdiction to hear petitions for direct review of reinstatement

orders under 8 U.S.C. § 1252 . . . .” Duran-Hernandez v. Ashcroft, 348 F.3d

1158, 1162 n.3 (10th Cir. 2003). We review constitutional claims de novo.

Lorenzo v. Mukasey, 508 F.3d 1278, 1282 (10th Cir. 2007).




                                        -3-
      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
      under this chapter, and the alien shall be removed under the prior
      order at any time after the reentry.

The implementing regulation requires an immigration officer to make three

determinations in establishing whether an alien is subject to reinstatement of a

removal order: (1) whether the alien was subject to a prior removal order;

(2) whether the alien is the person who was previously removed; and (3) whether

the alien illegally reentered the United States. See 8 C.F.R. § 241.8(a).

      Mr. Ruelas-Rios acknowledges our previous holding in Lorenzo “that

§ 241.8 provides sufficient process to withstand a facial attack on its validity.”

508 F.3d at 1284. We reasoned that, “[b]ecause the risk of error is so low, any

additional or substitute procedural safeguards would produce marginal

protections, if any, against erroneous determinations, while the cost in terms of

resources and delay would be substantial.” Id. (quotation and ellipsis omitted).

But Mr. Ruelas-Rios contends that Lorenzo did not address the due process

argument he raises. He emphasizes that, under the terms of the applicable statutes

and regulations, he was denied a hearing both in March 1998 in connection with

his previous removal and in February 2011 in connection with the reinstatement

of his prior removal order. See 8 U.S.C. § 1225(b)(1)(A)(i) (providing for

                                         -4-
removal determination by immigration officer “without further hearing or review”

unless alien indicates intent to apply for asylum or a fear of persecution);

8 C.F.R. § 241.8(a) (providing “alien has no right to a hearing before an

immigration judge” in reinstatement proceeding). Mr. Ruelas-Rios contends that,

under these circumstance, and “[a]s someone who has been on United States soil

for an extended period of time, whether lawfully or unlawfully, with [] strong

family ties to United States citizens, . . . at least once[] he should have been

afforded the right to a hearing before an immigration law judge.” Aplt. Opening

Br. at 3. He is correct that we did not consider this precise claim in Lorenzo.

      To establish a due process violation, however, Mr. Ruelas-Rios must

demonstrate that he suffered prejudice as a result of the denial of a hearing before

an immigration judge. He contends that, had he been allowed the opportunity to

proffer evidence, he would have noted that he is married to a United States citizen

and that he has five children who are also United States citizens. But he fails to

explain how his wife’s and his children’s status as United States citizens would

have affected DHS’s determination of any of the facts relevant to his eligibility

for removal under § 241.8 as an alien who illegally reentered the United States

after a previous removal.

      Mr. Ruelas-Rios also appears to contend that a hearing would have

permitted him to establish where and when he last entered the United States, in

order to rebut the immigration officer’s conclusion that he reentered the United

                                          -5-
States during the five-year exclusionary period. See Aplt. Opening Br. at 19 (“All

that is certain is that the petitioner was arrested nearly a decade after the end of

the exclusionary period, and more than a decade after he was turned back at the

border and that he was never afforded even one bite of the apple.”). 1 His

argument ignores that he was offered the opportunity to proffer such evidence.

The regulatory procedure permitted him to contest the initial determination that

he was eligible for reinstatement by submitting a written or oral statement.

Section 241.8(b) provides:

      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.

As to the question of illegal reentry, the regulation provides further that “the

officer shall consider all relevant evidence, including statements made by the

alien and any evidence in the alien’s possession.” 8 C.F.R. § 241.8(a)(3).

Mr. Ruelas-Rios declined to exercise his right to submit any kind of statement.

      In Duran-Hernandez, we rejected a petitioner’s due process claim because

he failed to show that he suffered prejudice as a result of the reinstatement

procedures. See 348 F.3d at 1163. We reasoned that, where the alien does not


1
       Mr. Ruelas-Rios does not elaborate on the evidence he would have
presented at a hearing with regard to his latest reentry. He does represent in his
brief that he “has been on United States soil for an extended period of time.”
Aplt. Opening Brief at 3.

                                          -6-
contest any of the facts found by the immigration officer under § 241.8(a), he

cannot prove that additional procedural safeguards would have changed the result

of his case. See id. Here Mr. Ruelas-Rios did not contest DHS’s determination

that he was subject to a prior removal order and had illegally reentered the United

States. Nor does he challenge DHS’s factual determinations on appeal. 2 We

cannot see how Mr. Ruelas-Rios can now claim that the denial of a right to a

hearing before an immigration judge prevented him from presenting his evidence

when he made no attempt to do so before the immigration officer. See Miller v.

Mukasey, 539 F.3d 159, 164 (2d Cir. 2008). “For the purposes of determining

whether a due process violation has occurred . . ., we see no meaningful

difference between conceding the predicate facts, on the one hand, and choosing

not to contest them, on the other. In both cases, the petitioner cannot show that

the reinstatement procedure has caused him any prejudice . . . .” Id.

                                        III.

      Because Mr. Ruelas-Rios has failed to establish any prejudice as a result of

not being afforded a hearing before an immigration judge, his due process claim




2
       Mr. Ruelas-Rios’s brief plainly raises only his due process claim. We do
not read his brief as challenging DHS’s determination that he reentered the
country illegally, either based on the evidence that was before the immigration
officer, or in light of some contrary evidence to which he merely alludes.

                                        -7-
fails. See Duran-Hernandez, 348 F.3d at 1162-63. The petition for review is

therefore DENIED.


                                                 Entered for the Court



                                                 Timothy M. Tymkovich
                                                 Circuit Judge




                                       -8-
