08-3714-ag
Lema v. Holder
                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED
BY THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.
W HEN CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY
M UST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE
NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 29th day of January, wo thousand and ten.

Present:         JOHN M. WALKER, JR.,
                 CHESTER J. STRAUB
                 ROSEMARY S. POOLER,
                             Circuit Judges.

_____________________________________________________

JOSE MANUEL LEMA,

                                                      Petitioner,

                         -v-                                         (08-3714-ag)

ERIC H. HOLDER, JR., ATTORNEY GENERAL,*



                                                      Respondent.


Appearing for Petitioner:      Manuel Gomez, New York, New York

Appearing for Respondent:      Zoe J. Heller, Office of Immigration Litigation, Civil Division,
                               Washington, D.C.

                               Tony West, Assistant Attorney General, Civil Division,
                               Department of Justice, Washington, D.C.


       *
           The Clerk of Court is directed to amend the official caption in this case to conform to
the listing of the parties above.
                              Mark C. Walters, Senior Litigation Counsel, Office of Immigration
                              Litigation, Department of Justice, Washington, D.C.

      Petition for review of an order of the Department of Homeland Security (“DHS”),
Immigration and Customs Enforcement (“ICE”).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the petition for review is DISMISSED in part and DENIED in part.

        Petitioner Jose Manuel Lema (“petitioner”) seeks review of the July 18, 2008 decision of
ICE reinstating petitioner’s prior order of deportation pursuant to 8 U.S.C. § 1231(a)(5). We
assume the parties’ familiarity with the underlying facts, procedural history, and specification of
issues for review. Petitioner challenges the order of reinstatement on the grounds that the
underlying deportation proceedings denied him due process. He does not dispute that if the
underlying deportation order is valid, it meets the statutory requirements for reinstatement.

        The reinstatement statute, 8 U.S.C. § 1231(a)(5), explicitly states that “the prior order of
removal . . . is not subject to being reopened or reviewed.” We interpreted this provision in
Garcia-Villeda v. Mukasey to mean that the statute “expressly prohibits us from giving petitioner
a second bite at the apple,” even when petitioner raises constitutional challenges to the
underlying order. 531 F.3d 141, 150 (2d Cir. 2008); see also Miller v. Mukasey, 539 F.3d 159,
164-65 (2d Cir. 2008). We held that the provision “does not offend due process because,
regardless of the process afforded in the underlying order, reinstatement of the prior deportation
order does not alter petitioner's legal condition.” Id. (internal quotation marks and citation
omitted). “[W]hile aliens have a right to fair procedures,” we reasoned, “they have no
constitutional right to force the government to re-adjudicate a final removal order by unlawfully
reentering the country.” Id. (quoting Morales-Izquierdo v. Gonzales, 486 F.3d 484, 498 (9th Cir.
2007)).

        We note that our decision in Garcia-Villeda and Miller did not explicitly address the
effect that 8 U.S.C. § 1252(a)(2)(D) might have on our ability to conduct collateral review of an
underlying deportation order. See 8 U.S.C. § 1252(a)(2)(D) (“Nothing in subparagraph (B) or
(C), or in any other provision of this chapter (other than this section) which limits or eliminates
judicial review, shall be construed as precluding review of constitutional claims or questions of
law raised upon a petition for review filed with the appropriate court of appeals in accordance
with this section.”). We further note that other “circuit courts that have considered the interplay
between § 1252(a)(2)(D) and § 1231(a)(5) have held that § 1252(a)(2)(D) re-vests the circuit
courts with jurisdiction over constitutional claims or questions of law raised in the context of
reinstatement proceedings.” Garcia de Rincon v. Dep't of Homeland Sec., 539 F.3d 1133, 1137
(9th Cir. 2008) (citing Lorenzo v. Mukasey, 508 F.3d 1278, 1282 (10th Cir. 2007); Debeato v.
Atty. Gen. of U.S., 505 F.3d 231, 235 (3d Cir. 2007); Ramirez-Molina v. Ziglar, 436 F.3d 508,
513-14 (5th Cir. 2006)). In addition, we note that several of these other circuit courts have held
“that § 1252(a)(2)(D) permits some collateral attack on an underlying removal order during
review of a reinstatement order if the petitioner can show that he has suffered a ‘gross
miscarriage of justice’ in the initial deportation proceeding.” Garcia de Rincon, 539 F.3d at 1138
(citing Debeato, 505 F.3d at 235 and Ramirez-Molina, 436 F.3d at 514).

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        Nevertheless, even if we were to assume that Section 1252(a)(2)(D) does revest us with
jurisdiction to review underlying deportation orders in certain circumstances, we would still lack
jurisdiction to review the underlying deportation order in this particular case. Section
1252(a)(2)(D) applies to “any other provision of this chapter (other than this section) which
limits or eliminates judicial review.” 8 U.S.C. § 1252(a)(2)(D). However, with the exception of
subsections (a)(2)(B) and (C), Section 1252(a)(2)(D) does not foreclose the jurisdictional hurdles
codified elsewhere in Section 1252, such as the requirement that administrative remedies be
exhausted before an alien seeks judicial review of a removal order. See Ramirez-Molina, 436
F.3d at 513-14. Here, petitioner never appealed his initial deportation order to the BIA.
Accordingly, we lack jurisdiction to review petitioner’s challenge to his underlying deportation
order.

        Finally, even if we were to assume jurisdiction to review petitioner’s underlying
deportation order, petitioner’s due process challenge would fail on the merits because petitioner
has failed to establish prejudice. “Parties claiming denial of due process in immigration cases
must, in order to prevail, allege some cognizable prejudice fairly attributable to the challenged
process.” Garcia-Villeda, 531 F.3d at 149 (internal quotation marks omitted). In the present
case, petitioner attempts to show prejudice by arguing that, if not for the alleged defects in his
underlying deportation proceeding, he would have applied for the relief of “voluntary departure”
and would now be able to apply for adjustment of status. Petitioner fails to acknowledge,
however, that he would have been subject to reinstatement of the 1988 order even if he had been
granted the relief of voluntary departure. The reinstatement statute pursuant to which petitioner’s
prior order was reinstated applies to aliens who “reentered the United States illegally after having
been removed or having departed voluntarily, under an order of removal . . . .” 8 U.S.C. §
1231(a)(5) (emphasis added). Furthermore, regardless of whether he departed voluntarily or was
involuntarily deported in 1988, petitioner is ineligible to apply for adjustment of status at this
time. See Garcia-Villeda, 531 F.3d at 151, 151 n.8 (noting that “[a]n illegal reentrant is not
eligible and may not apply or any relief under the INA” except as outlined in 8 C.F.R. § 241.8).

        We therefore DISMISS the petition for review insofar as it seeks review of the underlying
deportation order because we lack jurisdiction. We DENY the petition for review insofar as he
seeks review of the order of reinstatement, as Petitioner concedes that if his underlying
deportation order is valid, the statutory requirements for reinstatement have been met. The
pending motion for a stay of deportation is DISMISSED as moot. The temporary stay of
deportation is VACATED.


                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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