       07-0283-ag
       Garcia-Villeda v. Mukasey

 1                                 UNITED STATES COURT OF APPEALS
 2
 3                                    FOR THE SECOND CIRCUIT
 4
 5                                         -------------
 6
 7                                        August Term 2007
 8
 9   Argued: March 25, 2008                      Decided: July 8, 2008
10
11                                     Docket No. 07-0283-ag
12
13   --------------------------------------------------------X
14
15   Horacio H. Garcia-Villeda,
16
17                          Petitioner,
18
19                  - against -
20
21   Michael B. Mukasey, ∗ Attorney General of the United States,
22
23                          Respondent.
24
25   --------------------------------------------------------X
26
27          Before:         JACOBS, Chief Judge, and FEINBERG and HALL, Circuit
28                          Judges.
29
30        Petitioner Horacio H. Garcia-Villeda seeks review of a decision
31   of the U.S. Immigration and Customs Enforcement reinstating a prior
32   order of deportation for illegal entry. We deny petitioner’s request
33   for vacatur of the reinstatement order and hold that (1) 8 C.F.R. §
34   241.8 constitutes a valid interpretation of the reinstatement of
35   removal statute, 8 U.S.C. § 1231(a)(5); (2) petitioner failed to show
36   prejudice resulting from the reinstatement of his prior deportation
37   order; (3) the reinstatement of removal statute precludes any
38   collateral review of the underlying deportation proceeding; and (4)
39   reinstatement   of  the   prior  deportation   order   without  prior
40   adjudication of petitioner’s pending petitions for Waiver of Grounds
41   of Excludability and for Permission to Reapply for Admission was
42   proper, because, as an illegal reentrant, petitioner was inegilible

            ∗
              Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Michael B.
     Mukasey is substituted for Alberto Gonzales as Respondent.
                                                 1
 1   for any discretionary relief under the immigration laws and could
 2   only apply for permission to reapply for admission after having
 3   resided outside the U.S. for a minimum of ten years.
 4
 5         MICHAEL P. DiRAIMONDO, DiRaimondo & Masi, LLP, Melville, NY, for
 6         Petitioner.
 7
 8         SCOTT REMPELL, Trial Attorney, Office of Immigration Litigation,
 9         JEFFREY S. BUCHOLTZ, Acting Assistant Attorney General, Civil
10         Division, LINDA S. WERNERY, Assistant Director, U.S. Department
11         of Justice, Washington, DC, for Respondent.
12
13
14   FEINBERG, Circuit Judge:

15         Petitioner Horacio H. Garcia-Villeda seeks review of a December

16   28,   2006   order   of   the   Department     of   Homeland       Security    (“DHS”),

17   Immigration    and   Customs    Enforcement     (“ICE”),     reinstating       a   prior

18   order of deportation for illegal entry, entered against petitioner in

19   August 1996. The issues before us are whether elimination of the

20   requirement of a hearing before an immigration judge, pursuant to 8

21   C.F.R.   §   241.8   (2001),    is   consistent     with    the    reinstatement     of

22   removal statute, 8 U.S.C. § 1231(a)(5); whether the reinstatement of

23   removal procedure set forth in 8 C.F.R. § 241.8, both as applied in

24   this case and on its face, comports with the Due Process Clause of

25   the Fifth Amendment; whether the original deportation order could be

26   constitutionally     reinstated      despite    allegations         of   due    process

27   violations in the original proceeding; and whether the ICE properly

28   reinstated     the    underlying       deportation         order     without       first

29   adjudicating petitioner’s pending applications for Waiver of Grounds

30   of Excludability and for Permission to Reapply for Admission.

31
                                              2
 1           I.    BACKGROUND

 2           Petitioner, a native and citizen of Honduras, was apprehended

 3   for entering the United States (hereafter “U.S.”) without inspection

 4   in August 1996. On August 27, 1996, he was ordered deported by an

 5   immigration     judge,     a   ruling   he   did    not   appeal   to    the   Board   of

 6   Immigration Appeals (“BIA”) or contest in a federal court. A warrant

 7   for removal was issued, and petitioner was deported on September 5,

 8   1996.

 9           Petitioner reentered the U.S. illegally in May 1997. In June

10   1998, he married Martha Vienna Paz, a U.S. citizen, with whom he now

11   has two children.

12           On   December    28,   2006,    petitioner    appeared     for   an    interview

13   before an ICE officer to discuss his immigration status. During the

14   interview, petitioner admitted both his illegal reentry into the U.S.

15   and his earlier deportation in September 1996. On the same day, after

16   the   interviewing      officer   verified       petitioner’s    statements     and    his

17   identity, the Acting Supervisory Deportation Officer reinstated the

18   prior deportation order. Since then, petitioner has been detained in

19   Elizabeth, New Jersey.

20           In January 2007, petitioner was interviewed to determine whether

21   he had a reasonable fear of persecution in his country of origin,

22   which would entitle him to withholding of removal and protection

23   under the Convention Against Torture. After a hearing, in March 2007,




                                                  3
 1   an immigration judge ruled against petitioner. The BIA affirmed in

 2   July 2007, and petitioner did not seek review of the BIA’s decision.

 3        Thereafter, petitioner filed a timely petition for review of the

 4   December 28, 2006 reinstatement of removal order.

 5

 6        II.    DISCUSSION

 7        In 1996, as part of a sweeping overhaul of the immigration laws,

 8   Congress    enacted     the     Illegal       Immigration      Reform      and    Immigrant

 9   Responsibility     Act,     Pub.   L.   No.       104-208,   div.   C,   110     Stat.   3009

10   (“IIRIRA”). The IIRIRA, among other things, repealed § 242(f) of the

11   Immigration and Nationality Act (“INA”), 8 U.S.C. § 1252(f) (repealed

12   1996), and adopted INA § 241(a)(5), 8 U.S.C. § 1231(a)(5) (hereafter

13   “INA § 241(a)(5)” or the “reinstatement of removal statute”). 1 This

14   section became effective on April 1, 1997.

15        In    1997,      the     Attorney    General        aligned     the       implementing

16   regulations with the new statutory language, by replacing 8 C.F.R. §

17   242.23(b) (repealed 1997) –- which required a reinstatement hearing

18   before an immigration judge –- with 8 C.F.R. § 241.8, which changes




          1
                 INA § 241(a)(5), 8 U.S.C. § 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.

                                                   4
 1   the hearing requirement. 2 Under 8 C.F.R. § 241.8, once the immigration

 2   officer has established that the alien is indeed an illegal reentrant

 3   subject to the reinstatement of removal statute, the officer must

 4   order       the    alien    “removed     under      the    previous    order     of   exclusion,

 5   deportation, or removal in accordance with section 241(a)(5) of the

 6   [INA].” 8 C.F.R. § 241.8(c).

 7           Petitioner         argues      that   the       regulation     is   an   impermissible

 8   construction         of    the    statute,    because         it   contravenes    the   explicit

 9   mandate       of     INA    §    240,    8    U.S.C.      §    1229a(a)(1),      that    removal

10   proceedings be conducted before an immigration judge. Petitioner also

11   challenges the regulation on constitutional grounds, alleging that,

12   both on its face and as applied in his case, it violates the Due

13   Process Clause of the Fifth Amendment. In addition, petitioner claims

14   that the underlying deportation order itself deprived him of due

15   process       and     thus       was    not   subject         to    reinstatement.      Finally,

16   petitioner contends that, even if the regulation is valid, the ICE

17   was   precluded           from   reinstating        the    earlier     order     without   first

             2
                       8 C.F.R. § 241.8 states in pertinent part:

                   (a) Applicability. An alien who illegally reenters the United
                   States after having been removed, or having departed
                   voluntarily, while under an order of exclusion, deportation,
                   or removal shall be removed from the United States by
                   reinstating the prior order. The alien has no right to a
                   hearing before an immigration judge in such circumstances. In
                   establishing whether an alien is subject to this section, the
                   immigration officer shall determine the following: (1)
                   Whether the alien has been subject to a prior order of
                   removal. . . . (2) The identity of the alien, i.e., whether
                   the alien is in fact an alien who was previously removed . .
                   . . [and] (3) Whether the alien unlawfully reentered the
                   United States.

                                                         5
 1   adjudicating         petitioner’s        then-pending           petitions          for       Waiver     of

 2   Grounds of Excludability and for Permission to Reapply for Admission,

 3   which,    he    believes,      would     have      been       successful.       We      address       each

 4   argument in turn.

 5

 6           A. Challenge to the Validity of 8 C.F.R. § 241.8.

 7           Section 240 of the INA, entitled “Removal proceedings,” requires

 8   that “[a]n immigration judge shall conduct proceedings for deciding

 9   the   inadmissibility          or    deportability             of    an    alien.”       8    U.S.C.     §

10   1229a(a)(1). The section further provides:

11            Unless otherwise specified in this chapter, a proceeding
12            under this section shall be the sole and exclusive
13            procedure for determining whether an alien may be
14            admitted to the United States or, if the alien has been
15            so admitted, removed from the United States.
16
17   8 U.S.C. § 1229a(a)(3) (emphasis added). Petitioner claims that this

18   language       clearly       expresses       congressional            intent       to    extend        the

19   requirement      of      a    hearing     before         an     immigration          judge      to     all

20   proceedings –- including reinstatement of prior deportation orders –-

21   that result in removal of an alien from the U.S. Petitioner argues

22   that,    since    Congress       has    not       specifically            exempted      reinstatement

23   proceedings from the hearing requirement, and since a hearing was

24   provided to aliens subject to reinstatement for over four decades

25   under    the     prior       statute    and       the    implementing          regulations,            the

26   procedure      prescribed       by     INA    §    240    is        the    “sole     and      exclusive

27   procedure      for    determining”        whether         an    earlier       deportation            order


                                                        6
 1   should   be   reinstated.    In     petitioner’s       view,   the   implementing

 2   regulation that confers upon immigration officers, not judges, the

 3   authority to reinstate without a hearing a prior deportation order

 4   against an illegal reentrant is in direct conflict with INA § 240 and

 5   thus invalid.

 6         To assess the validity of the regulation at issue, we apply the

 7   two-prong test enunciated in Chevron, U.S.A., Inc. v. Natural Res.

 8   Def. Council, Inc., 467 U.S. 837, 842-43 (1984). Under the first

 9   prong of Chevron, we determine “whether Congress has directly spoken

10   to the precise question at issue,” id. at 842, i.e., here, whether a

11   prior removal order may be reinstated without a full hearing before

12   an immigration judge. “If the intent of Congress is clear, that is

13   the end of the matter . . ..” Id. However, if the statute is found to

14   be ambiguous, the question for us under the second prong “is whether

15   the agency’s answer is based on a permissible construction of the

16   statute.” Id. at 843.

17         The validity of the regulation implementing the reinstatement of

18   removal statute is a matter of first impression in this circuit, but

19   we are not without guidance on the question. Every other circuit that

20   has   considered   the   issue    has   upheld   the    regulation   as   a   valid

21   interpretation of the INA. See Lorenzo v. Mukasey, 508 F.3d 1278,

22   1283-84 (10th Cir. 2007); Morales-Izquierdo v. Gonzales, 486 F.3d

23   484, 489-95 (9th Cir. 2007) (en banc); De Sandoval v. U.S. Att’y

24   Gen., 440 F.3d 1276, 1280-83 (11th Cir. 2006); Ochoa-Carrillo v.


                                              7
 1   Gonzales, 437 F.3d 842, 846 (8th Cir. 2006); Lattab v. Ashcroft, 384

 2   F.3d 8, 17-20 (1st Cir. 2004); see also Tilley v. Chertoff, 144 F.

 3   App’x 536, 539-40 (6th Cir. Aug. 15, 2005) (unpublished).

 4        (1) Chevron Step One. Petitioner correctly points out that INA §

 5   241(a)(5)    does    not    specify         the   procedures     to   be   followed    by    the

 6   Attorney     General       in    reinstating          an    earlier    deportation         order.

 7   However, petitioner errs in assuming that, because Congress did not

 8   explicitly specify those procedures, it intended that reinstatement

 9   proceedings be governed by INA § 240.

10        Petitioner’s primary reliance on the direction of INA § 240 that

11   a full-fledged hearing before an immigration judge “be the sole and

12   exclusive    procedure          for     determining        whether    an   alien”     will     be

13   deported from the U.S., 8 U.S.C. § 1229a(a)(3), 3 is misplaced. This

14   provision    requires       a    formal      hearing       in   removal    proceedings       that

15   concern only aliens already admitted to the U.S. Petitioner has twice

16   entered the U.S. illegally, but has never been “admitted” to this

17   country. In any event, such a hearing is not “the sole and exclusive

18   procedure”     for     removability           determinations,         when    Congress        has

19   “otherwise    specified.”             For   reinstatement,        Congress    did     in     fact

20   specify otherwise: in INA § 241(a)(5), it authorized the Attorney

21   General to reinstate prior removal orders based on the simple finding

22   that an alien entered the U.S. illegally after having been deported. 4



          3
                  The language is quoted in full supra at p. 6.
          4
                  See supra note 1.
                                                       8
 1          In   addition,       the    placement        of   the   reinstatement              of    removal

 2   statute in INA § 241, under the title “Detention and removal of

 3   aliens ordered removed,” separate from INA § 240, which is entitled

 4   “Removal proceedings,” indicates “a congressional intention to treat

 5   reinstatement         determinations           differently           from        first-instance

 6   determinations       of     removability.”          Lattab,    384    F.3d       at       18    (citing

 7   Alexander v. Sandoval, 532 U.S. 275, 288-91 (2001)). As the Ninth

 8   Circuit sitting en banc put it, it is unlikely that “Congress would

 9   have   bothered      with    the     detailed       provisions       of    INA       §    241    if   it

10   intended to give an alien subject to reinstatement of a prior removal

11   order exactly the same rights and procedural protections as an alien

12   facing removal for the first time.” Morales-Izquierdo, 486 F.3d at

13   491. It is, accordingly, fair for us to infer that the reinstatement

14   of removal statute was introduced as an alternative to the otherwise

15   applicable     procedure          mandated   by      INA   §   240        for    first         instance

16   determinations of removability.

17          Our finding that INA § 240’s requirement of a comprehensive

18   hearing     before    an     immigration       judge       does   not      apply          to    illegal

19   reentrants is consistent with the legislative history of the portion

20   of the IIRIRA dealing with reinstatement of a removal order. That

21   history     evinces       unequivocal    congressional            intent        to       rectify      the

22   defects of the pre-IIRIRA procedures for reinstatement of removal

23   orders and “make the removal of illegal reentrants more expeditious.”

24   Lattab, 384 F.3d at 20; see also H.R. Rep. No. 104-469(I), at 13


                                                     9
 1   (1996) (explaining that if “[a]liens who are ordered removed . . .

 2   seek reentry they are subject to immediate removal under the prior

 3   order”      (emphasis    added));        id.       at    107    (characterizing          the   removal

 4   procedures      then     in     effect        as    “cumbersome           and    duplicative”           and

 5   expressing frustration because the “[r]emoval of aliens who enter the

 6   United States illegally, even those who are ordered deported after a

 7   full due process hearing, is an all-too-rare event”). Congress was

 8   concerned with the inefficiencies of the previous scheme and sought

 9   to   modernize    it     by    narrowing        the      range       of   defenses     available        to

10   recidivist illegal aliens and, most importantly, by eliminating any

11   duplication      between       removal        and       reinstatement         proceedings.         It   is

12   clear that Congress enacted INA § 241(a)(5) to effect a “substantive

13   change” in the prior regime. See 62 Fed. Reg. 10312, 10326 (Mar. 6,

14   1997). Quite simply, “Congress replaced [the] reinstatement provision

15   with   one     that    toed     a   harder         line    .     .    ..”     Fernandez-Vargas           v.

16   Gonzales, 548 U.S. 30, 34 (2006).

17          We    cannot     nullify         the    unambiguous            intent      of     Congress       to

18   streamline the reinstatement process and distinguish it from removal

19   proceedings      under        INA   §    240.       “There       is       a   presumption      against

20   construing a statute as containing superfluous or meaningless words

21   or giving it a construction that would render it ineffective.” United

22   States v. Blasius, 397 F.2d 203, 207 n.9 (2d Cir. 1968). Petitioner

23   urges us to do just that, i.e., render INA § 241(a)(5) superfluous,

24   by   reinventing        reinstatement          of       prior    removal        orders    as   a    sub-


                                                         10
 1   category of removal proceedings subject to the hearing requirement

 2   under INA § 240. The only way to bestow meaning on both provisions is

 3   to conclude that Congress intended to exempt reinstatement of removal

 4   from the procedural requirements of INA § 240.

 5          Concluding that INA § 240 is inapplicable here does not end our

 6   inquiry      of   “whether    Congress         has    directly    spoken      to   the   precise

 7   question at issue,” Chevron, 467 U.S. at 842, i.e., whether Congress

 8   explicitly empowered the executive branch to design as summary a

 9   procedure for reinstatement as the one set forth in 8 C.F.R. § 241.8.

10   Although the legislative history and the reinstatement of removal

11   statute itself clearly reflect general congressional intent that a

12   simplified procedure be employed for the swift removal of illegal

13   reentrants, the statutory scheme “neither explicates nor endorses any

14   particular procedures for reinstating removal orders.” Lattab, 384

15   F.3d   at    19   (also    noting       that    the    legislative       history     “does    not

16   address procedural questions with either clarity or specificity”).

17   Like most of the circuits that have decided the issue before us, we

18   conclude      that   INA     §§   240    and     241(a)(5)       “are    at   best   ambiguous

19   regarding the procedures applicable to aliens who reenter the United

20   States in violation of an existing removal order.” De Sandoval, 440

21   F.3d at 1281; see also Lorenzo, 508 F.3d at 1284; Lattab, 384 F.3d at

22   19. We, therefore, proceed with the second step of our analysis.

23          (2)    Chevron     Step    Two.    In    examining    the        permissibility       of   8

24   C.F.R. § 241.8, we are heedful of the Supreme Court’s direction that


                                                      11
 1   the reasonable construction of a statutory provision be affirmed,

 2   even if it is not the one “the court would have reached if the

 3   question initially had arisen in a judicial proceeding.” Chevron, 467

 4   U.S. at 843 n.11.

 5          We would surely be hard-pressed to conclude that the Attorney

 6   General’s implementation of the reinstatement of removal statute is

 7   impermissible.        First,     the       text    of    the      reinstatement       of    removal

 8   statute itself “assumes the use of summary, rather than judicial,

 9   proceedings.”         Lorenzo,       508     F.3d       at     1283.    The     inquiry      in     a

10   reinstatement         proceeding       is    limited         to    whether    the     “alien      has

11   reentered the United States illegally after having been removed.” 8

12   U.S.C. § 1231(a)(5). The summary procedure set forth in 8 C.F.R. §

13   241.8 is, therefore, “quite appropriate when the only issues to be

14   determined are those establishing the agency’s right to proceed under

15   [INA] § 241(a)(5) –- the alien’s identity, the existence of a prior

16   removal      order,    and   whether        the     alien      has   unlawfully       reentered.”

17   Alvarez-Portillo v. Ashcroft, 280 F.3d 858, 867 (8th Cir. 2002). This

18   bare   investigation         “can     be    performed        like    any     other    ministerial

19   enforcement      action”       by    an     immigration           officer,    in     lieu   of     an

20   immigration judge. Morales-Izquierdo, 486 F.3d at 491.

21          Furthermore, as we discuss below in parts II.C and II.D of the

22   opinion, illegal reentrants are now categorically declared ineligible

23   for    any    relief     from       removal       and   are       barred     from    seeking      any

24   collateral review of the reinstated order. This is a significant


                                                       12
 1   change from the previous regime and further simplifies the inquiry.

 2   Compare    8   U.S.C.   §   1231(a)(5)   with   8   U.S.C.   §   1252(f)     (repealed

 3   1996). “[T]he elimination of any exogenous defense to reinstatement

 4   significantly narrows the range of issues to be adjudicated, thereby

 5   limiting the value of additional procedures.” Lattab, 384 F.3d at 20.

 6          The regulation is, therefore, “entirely consistent,” id, with

 7   the IIRIRA’s stated purpose to “enable . . . the prompt exclusion or

 8   removal of those who are not . . . entitled” to admission. See H.R.

 9   Rep. No. 104-469(I), at 111. Deference to the Attorney General’s

10   interpretation is even more imperative “in the immigration context

11   where officials ‘exercise especially sensitive political functions

12   that   implicate    questions    of   foreign   relations.’”      INS   v.    Aguirre-

13   Aguirre, 526 U.S. 415, 425 (1999) (quoting INS v. Abudu, 485 U.S. 94,

14   110 (1988)). We, like our sister circuits, 5 have “little difficulty”

15   in deferring to the government’s reasonable interpretation of INA §

16   241(a)(5). Lattab, 384 F.3d at 20.

17          Invoking the doctrine of constitutional avoidance, petitioner

18   invites us to find the regulation an impermissible interpretation of

19   the statute. The doctrine requires that when given a choice between

20   “two plausible statutory constructions,” we avoid adopting the one


            5
                  With the exception of the Ninth Circuit, all other circuits that
            have addressed the validity of 8 C.F.R. § 241.8 have resolved the issue on
            the second step of Chevron, upholding the regulation as a permissible
            construction of the reinstatement of removal statute. See Lorenzo, 508
            F.3d at 1283; De Sandoval, 440 F.3d at 1283; Ochoa-Carillo, 437 F.3d at
            846; Lattab, 384 F.3d at 20. The Sixth Circuit also resolved the issue on
            the first step of Chevron in an unpublished summary order. See Tilley, 144
            F. App’x at 540.
                                              13
 1   that “would raise a multitude of constitutional problems.” Clark v.

 2   Martinez, 543 U.S. 371, 380-81 (2005). Nevertheless, the doctrine is

 3   unavailing to petitioner, because, as the Ninth Circuit held, once an

 4   ambiguous statute has been interpreted by the agency in charge of its

 5   implementation, we lack the “authority to re-construe the statute,

 6   even to avoid potential constitutional problems.” Morales-Izquierdo,

 7   486 F.3d at 493. Our role here is confined to deciding “whether the

 8   agency’s interpretation reflects a plausible reading of the statutory

 9   text.” Id. We hold that it does.

10         B. Due Process Challenges.

11         Petitioner’s   constitutional      challenges      to   the   reinstatement

12   procedure, as laid down in 8 C.F.R. § 241.8 and as applied in his

13   case, likewise are without merit. Parties claiming denial of due

14   process in immigration cases must, in order to prevail, “allege some

15   cognizable prejudice fairly attributable to the challenged process.”

16   Lattab, 384 F.3d at 20; see also Zerrei v. Gonzales, 471 F.3d 342,

17   347 (2d Cir. 2006) (per curiam).

18         Petitioner fails to demonstrate how the alleged shortcomings

19   have prejudiced the outcome of his case. He “has admitted” before the

20   ICE   and   before   us     “all   of   the    facts    necessary    to   warrant

21   reinstatement” under INA § 241(a)(5), i.e., that he is an alien who

22   reentered   the   U.S.    illegally   after   being    previously   deported.   De

23   Sandoval, 440 F.3d at 1285. Thus, petitioner concededly “satisfie[d]

24   the statutory predicates for reinstatement.” Morales-Izquierdo, 486


                                             14
 1   F.3d   at     495.    None       of   the    additional       procedural       protections      he

 2   demands, including the presence of counsel, would have changed this.

 3   We therefore need not determine the constitutional adequacy of the

 4   existing procedures as to aliens who would dispute the factual bases

 5   for reinstatement. Id.

 6          The    absence       of    the       requisite    prejudice       further    precludes

 7   petitioner from challenging the constitutionality of 8 C.F.R. § 241.8

 8   on its face. Our role is “to provide relief to claimants . . . who

 9   have suffered . . . actual harm.” Lewis v. Casey, 518 U.S. 343, 349

10   (1996). We therefore reject petitioner’s due process claims.

11          We note, however, that despite the lack of a formal hearing, the

12   fast-track reinstatement process under 8 C.F.R. § 241.8 is not devoid

13   of   procedural       safeguards.       First,       “[t]he    immigration       officer      must

14   obtain the prior order of . . . deportation relating to the alien.”

15   Id. § 241.8(a)(1). Second, if the alien’s identity is disputed, the

16   officer      must    compare      the   alien’s      fingerprints       with    those    of    the

17   previously deported alien; “[i]n the absence of fingerprints in a

18   disputed      case    the    alien      shall    not    be    removed    pursuant       to    [the

19   reinstatement regulation].” Id. § 241.8(a)(2). Third, in making the

20   crucial finding that the alien reentered the U.S. unlawfully, the

21   officer must “consider all relevant evidence, including statements

22   made by the alien and any evidence in the alien’s possession.” Id. §

23   241.8(a)(3). If the alien claims lawful admission, “the officer shall

24   attempt to verify” the claim by checking the available ICE databases.


                                                     15
 1   Id. Last, even when the officer finds that the alien is subject to

 2   removal,    the   alien    must    be   notified      in    writing    of   this   adverse

 3   determination and be advised of the right to submit “a written or

 4   oral statement contesting the determination,” which the officer must

 5   then take into account. Id. § 241.8(b). “If the alien expresses a

 6   fear of returning to the country designated in [the reinstatement]

 7   order, the alien shall be immediately referred to an asylum officer

 8   for an interview.” Id. § 241.8(e). The alien may also challenge the

 9   reinstatement order in a court of appeals. 8 U.S.C. § 1252(a).

10           C. Collateral Review of the Underlying Deportation Order.

11           Petitioner asks us to vacate the reinstatement order also on the

12   ground that the underlying deportation proceeding deprived him of due

13   process.    However,      the   reinstatement      of      removal    statute   expressly

14   prohibits us from giving petitioner a second bite at the apple. See 8

15   U.S.C. § 1231(a)(5) (“[T]he prior order of removal . . . is not

16   subject to being reopened or reviewed . . . .”); Fernandez-Vargas,

17   548 U.S. at 34-35. Petitioner had the right to challenge the validity

18   of the original deportation proceeding in a direct appeal to the BIA,

19   but he did not exercise it.

20           This outcome does not offend due process because, “regardless of

21   the process afforded in the underlying order,” reinstatement of the

22   prior deportation order does not alter petitioner’s legal condition.

23   Morales-Izquierdo, 486 F.3d at 497. The statute “does not penalize an

24   alien    for   the   reentry      (criminal     and   civil    penalties     do    that).”


                                                16
 1   Fernandez-Vargas, 548 U.S. at 44. It merely gives effect to a final

 2   order issued after a formal hearing before an immigration judge. The

 3   purpose is to “stop an indefinitely continuing violation that the

 4   alien himself could end . . .             by voluntarily leaving the country.”

 5   Id. As the Ninth Circuit put it, “[w]hile aliens have a right to fair

 6   procedures, they have no constitutional right to force the government

 7   to re-adjudicate a final removal order by unlawfully reentering the

 8   country.” Morales-Izquierdo, 486 F.3d at 498.

 9        In   seeking    to     set   aside    the   reinstated      deportation     order,

10   petitioner relies on United States v. Mendoza-Lopez, 481 U.S. 828

11   (1987). However, that case recognized an alien’s right to attack

12   collaterally   a    prior   deportation      order   only   in   the   context    of   a

13   subsequent criminal proceeding for illegal reentry where the prior

14   deportation is an element of the crime, and where direct judicial

15   review of the original proceeding was not available due to procedural

16   defects. Id. at 838-39 & 839 n.17.

17        D. Waiver of Inadmissibility.

18        Finally, petitioner argues that, before the reinstatement order

19   could be issued, he was entitled to adjudication on the merits of his

20   applications   for     Waiver      of     Grounds    of   Excludability     and    for

21   Permission to Reapply for Admission, filed with the DHS on September

22   30, 2005, before the reinstatement order was issued. 6 This Court,


          6
                In September 2005, petitioner’s wife filed a petition for Alien
          Relative and petitioner applied for adjustment of his immigration status;
          petitioner also filed petitions for (1) Waiver of Grounds of Excludability
          and (2) Permission to Reapply for Admission. On April 5, 2006, former
                                                17
 1   however,   recently     rejected     this    argument      in     Tenesaca    Delgado   v.

 2   Mukasey,   516   F.3d    65    (2d   Cir.        2008).   In     Tenesaca    Delgado,   we

 3   “accorde[d] Chevron deference to the BIA’s holding [in In re Torres-

 4   Garcia, 23 I. & N. Dec. 866 (B.I.A. 2006)] that an applicant who is

 5   inadmissible [as a result of having reentered this country illegally

 6   after having been removed] is ineligible to apply for adjustment of

 7   status from within the United States and is bound by the consent to

 8   reapply provision, which requires that he seek permission to reapply

 9   for admission from outside of the United States after ten years have

10   passed   since   his    most   recent   departure         from    the   United   States.”

11   Tenesaca Delgado, 516 F.3d at 73.

12        We understand petitioner’s situation, yet we cannot disregard

13   the statutory text. 7 An illegal reentrant “is not eligible and may not

14   apply for any relief” under the INA. 8 U.S.C. § 1231(a)(5) (emphasis

15   added). 8 Petitioner was permanently inadmissible and could seek the


          counsel for petitioner and his wife withdrew, on behalf of his clients,
          the petitions for Alien Relative and Adjustment of Immigration Status,
          yet, significantly, not the applications for Waiver of Grounds of
          Excludability and Permission to Reapply for Admission. The latter two
          petitions were not decided until May 29, 2007, after petitioner sought a
          writ of mandamus against the DHS in the U.S. District Court for the
          Southern District of New York.
          7
                See supra note 1.
          8
                8 C.F.R. § 241.8 does allow an alien subject to reinstatement to (1)
          “express[] a fear of returning to the country designated in [the
          reinstatement] order”; or (2) apply for adjustment of status under either
          the Haitian Refugee Immigrant Fairness Act of 1998 or the Nicaraguan
          Adjustment and Central American Relief Act. In both those instances,
          reinstatement proceedings halt until there is a final determination on the
          reasonable fear or adjustment of status claims. See 8 C.F.R. § 241.8(d)-
          (e). Petitioner did indeed express fear of returning to Honduras while in
          custody and was referred first to an asylum officer and then to an
          immigration judge, who dismissed the claim in March 2007. Petitioner did
                                                 18
1   consent of the Homeland Security Secretary to a new application for

2   admission only after having resided outside the U.S. for a minimum of

3   10 years. See 8 U.S.C. § 1182(a)(9)(C)(i)(II) & (ii). Petitioner

4   admittedly did not satisfy these requirements.

5

6        III. CONCLUSION

7        We have considered all of petitioner’s arguments and find them

8   to be without merit. Accordingly, we DENY the petition.




         not seek review of the BIA’s ruling that affirmed the dismissal in July
         2007. Thus, the reinstatement order may be properly enforced at the
         present juncture.
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