    14-4421
    Santacruz v. Lynch
                                                                                      DHS
                                                                                Mulligan, IJ
                                                                               A074 764 264

                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST 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 Thurgood Marshall United States
    Courthouse, 40 Foley Square, in the City of New York, on the
    7th day of September, two thousand sixteen.

    PRESENT:
             JOHN M. WALKER, JR.,
             REENA RAGGI,
             SUSAN L. CARNEY,
                  Circuit Judges.
    _____________________________________

    CRISTIAN MAURICIO SANTACRUZ, AKA
    CRISTIAN SANTACRUZ,
             Petitioner,

                         v.                                          14-4421
                                                                     NAC
    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                     Ashish Kapoor, Kapoor Law Firm, PLLC,
                                        Garden City, New York.

    FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
                                        Assistant Attorney General; Ernesto
                                        H. Molina, Jr., Assistant Director;
                                        Jamie M. Dowd, Senior Litigation
                           Counsel,   Office   of   Immigration
                           Litigation, United States Department
                           of Justice, Washington D.C.

    UPON DUE CONSIDERATION of this petition for review of an

Immigration   Judge’s   (“IJ”)   order,   it   is   hereby   ORDERED,

ADJUDGED, AND DECREED that the petition for review is DENIED.

    Petitioner Cristian Mauricio Santacruz, a native and

citizen of Ecuador, seeks review of the February 6, 2014

reinstated removal order of the Department of Homeland Security

(“DHS”) and the October 31, 2014 order of the IJ granting him

withholding of removal.    He argues that the reinstatement of

his 2008 removal order, which precluded him from seeking

discretionary relief such as asylum, deprived him of due

process.   We review questions of law and constitutional claims

de novo.   See Pierre v. Holder, 588 F.3d 767, 772 (2d Cir. 2009).

In doing so, we assume the parties’ familiarity with the

underlying facts and procedural history in this case.

    Where, as here, “the Attorney General finds that an alien

has reentered the United States illegally after having been

removed . . . 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.”      8 U.S.C. § 1231(a)(5).       In

deciding whether to reinstate a removal order, an immigration

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officer is required to determine whether the alien is the same

person against whom the prior removal order was entered and

executed, and whether the alien unlawfully reentered the

country.      See 8 C.F.R. § 241.8(a).     Santacruz concedes that he

was previously removed pursuant to a removal order and that he

subsequently reentered the country unlawfully.          Therefore, the

reinstatement of his prior removal order was not in error, and

his illegal reentry precluded him from seeking discretionary

relief such as asylum.        See 8 U.S.C. § 1231(a)(5); 8 C.F.R.

§241.8(a), (e); see also Herrera-Molina v. Holder, 597 F.3d 128,

139   (2d     Cir.   2010)   (explaining     that   alien   subject    to

reinstatement of removal order is eligible only for withholding

of removal).

      Santacruz, however, argues that he was entitled to apply

for asylum and that the failure to afford him an opportunity

to seek such relief violated his right to due process.                His

argument is foreclosed by Herrera-Molina v. Holder, 597 F.3d

at 130, 138-40 (rejecting applicant’s claims that, despite his

illegal reentry and the reinstatement of his prior removal

order,   he    was   entitled   to   apply    for   asylum,   and   that

§ 1231(a)(5) deprived him of due process).




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    For the foregoing reasons, the petition for review is

DENIED.

                     FOR THE COURT:
                     Catherine O’Hagan Wolfe, Clerk of Court




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