                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             FEB 4 2000
                              FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    JESUS MANUEL YANEZ-TORRES,

                Petitioner,

    v.                                                   No. 99-9504
                                                       (No. A20679872)
    IMMIGRATION &                                    (Petition for Review)
    NATURALIZATION SERVICE,

                Respondent.


                              ORDER AND JUDGMENT          *




Before EBEL , KELLY , and BRISCOE , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 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      This order and judgment is not binding precedent, except under the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. 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.
       Petitioner Jesus Manuel Yanez-Torres challenges the reinstatement of his

June 22, 1981 deportation order pursuant to 8 U.S.C. § 1231(a)(5) (Supp. 1998),

and his subsequent deportation to Mexico on January 19, 1999. We have

jurisdiction to review the final order reinstating the 1981 deportation order under

8 U.S.C. § 1252(a)(1) (Supp. 1998) (review of final orders of removal), and we

affirm.


                          I. Background facts and proceedings

       Petitioner, a native and citizen of Mexico, has a lengthy history of illegal

entries into and deportations from the United States, beginning in 1972. In 1973

petitioner, who had illegally entered the United States without inspection, was

given thirty days to voluntarily depart because his infant daughter was ill.        See

R. at 357. Several extensions of his voluntary departure date were granted due

to his child’s illness, extending his stay to November 1, 1974.        See id. at 353-54.

The record does not indicate whether he departed by that date.

       In October 1976 petitioner was apprehended while illegally entering the

United States.   See id. at 348. Although no document in the record evinces the

actual issuance of a priority date by a United States consular official,       see also

R. at 320 (stating in 1981 that petitioner’s claim that he had a visa priority date

of August 12, 1976, was not documented), the immigration officer noted that

petitioner claimed a priority date of August 12, 1976, and granted petitioner

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a six-month extension to depart from June 22, 1977.        See id. An additional

extension was granted to July 16, 1978.    See id. at 340. On November 6, 1979,

petitioner applied for, and was apparently granted, a one-year extension on his

statement that he was still awaiting a consulate appointment under       Silva v. Levi ,

No. 76-C-4268 (N.D. Ill. Mar. 10, 1977).    1
                                                 See id. at 303, 335, 337.

      Petitioner was arrested again on June 9, 1980, while illegally entering the

United States, see id. at 332, and he was ordered to be deported on June 16, 1980.

See id. at 325. Petitioner either never left or illegally reentered the United States,


1
       The court in Silva issued an injunction enjoining the INS from deporting
certain Western Hemisphere aliens, including those from Mexico, with visa
priority dates between July 1, 1968, and December 31, 1976, because of an
erroneous allocation of visas.     See Ventura-Escamilla v. INS , 647 F.2d 28, 29 n.2
(9th Cir. 1981). A “ Silva notice” or letter informed the alien that the INS would
be “taking no action on [your] case until further order from the Court. This
means that you are permitted to remain in the United States without threat of
deportation or expulsion until further notice.”      Bagues-Valles v. INS , 779 F.2d
483, 484 (9th Cir. 1985). When the       Silva injunction was vacated on November 1,
1981, because all of the “recaptured visas” had been issued by October 1981, the
INS proceeded with deportation actions against those who had still not received
visas. See Silva Order of Dec. 18, 1981 (attached as Addendum C to
Respondent’s Br.) . While the record indicates that petitioner’s wife may have had
Silva status in 1980, see R. at 303, it appears that petitioner has never had such
status. See R. at 322 (March 19, 1981 memorandum stating that petitioner’s
attorney appeared in the Denver immigration office “to request Silva letter for his
client” and noting that petitioner’s wife had “recently been approved issuance of a
Silva Letter.”) Even if petitioner once had      Silva status, however, once he left the
United States and illegally reentered after March 11, 1977, he may have lost the
protection of the injunction because, under the express provisions of the
injunction, “[n]o alien who entered the United States on or after March 11, 1977
shall be protected by this order.”    Silva Temporary Restraining Order issued
April 1, 1977, at 2 (attached as Addendum A to Respondent’s Br.).

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and he was ordered to surrender for investigative processing on March 19, 1981.

See id. at 322. On June 22, 1981, petitioner was again found to be deportable

and was granted voluntary departure with the deportation order to automatically

become effective on August 22, 1981, if petitioner failed to depart.       See id.

at 197. Petitioner did not appeal from that order. The Immigration and

Naturalization Service (INS) denied his August 1981 request to apply for

admission after deportation.      See id. at 317, 320-21. Although his wife told

immigration officials in 1982 that petitioner left the United States in accordance

with the order granting voluntary departure,       see id. at 211, petitioner was again

arrested in the United States on January 11, 1985, and the 1981 deportation order

was immediately executed at the INS’s expense.          See id. at 162, 217.

       Petitioner again illegally reentered the United States in January or

November 1985, compare id. at 106 with id. at 251, and in 1997 again applied for

an adjustment of status,   see id. at 109-112. In his application, he swore that he

had been in the United States since 1972 except for one week in 1982, and that he

had never been deported.       See id. at 109, 111.

       On January 11, 1999, petitioner was notified that the INS intended to

reinstate his 1981 deportation order and was given an opportunity to respond.

See id. at 106. A final order was issued on January 18, 1999, and he was deported




                                             -4-
to Mexico by the INS on January 19, 1999,         see id. at 103. He filed a petition for

review on February 12, 1999.


                                    II. Jurisdiction

       Citing 8 U.S.C. § 1252 (Supp. 1998), respondent argues that, while this

court may review the propriety of the reinstatement of the 1981 deportation order,

we lack jurisdiction to entertain a collateral attack on the validity of the order

itself. We agree. Section 1252(d)(1) provides that a final order of removal may

be judicially reviewed only if “the alien has exhausted all administrative remedies

available to the alien as of right.” Further, § 1231(a)(5) provides that a removal

order that is reinstated on the basis of a subsequent illegal entry “is not subject to

being reopened or reviewed.” Because petitioner failed to timely exhaust his

administrative remedies or to timely seek review of the 1981 deportation order,

we do not now have jurisdiction to review the underlying validity of that order.

Cf. De Souza v. Barber , 263 F.2d 470, 474 (9th Cir. 1959) (holding that alien

whose deportation order had been reinstated pursuant to this section (under prior

law) but who did not seek review of the order or question its validity when

initially issued may not collaterally attack the order in habeas proceedings

following deportation after reinstatement). We therefore do not address

petitioner’s argument that the   Silva injunction somehow “voided” the 1981

deportation order.

                                            -5-
                                    III. Discussion

      A. Application of the reinstatement statute. Under § 1231(a)(5),

      [i]f 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.

This section was formerly codified in essentially the same language at 8 U.S.C.

§ 1252(f) (1994), and has been part of the immigration law at least since 1952.

See, e.g., Mesina v. Rosenberg   , 278 F.2d 291, 294 & n.5 (9th Cir. 1960). The

Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA),

Pub.L. No. 104-208, Div. C, 110 Stat. 3009 (1996), amended and recodified

certain provisions of immigration law, including this section.

      Petitioner argues that if the INS has authority to reinstate deportation

orders, then petitioner must be deemed to have been in deportation proceedings as

of January 11, 1999, and that the Attorney General therefore improperly applied

§ 1231(a)(5) retroactively. We reject this argument. In general, section 309(a)

of IIRIRA provides that the effective date of IIRIRA’s amendments was April 1,

1997. For aliens who were in exclusion or deportation proceedings on that date,

however, transitional rules applied pre-amendment law in most cases.      See

§ 309(c)(1); Reno v American-Arab Anti-Discrimination Comm        ., 119 S. Ct. 936,

                                          -6-
940-41 (1999). Even if petitioner were deemed to have been in deportation

proceedings on January 11, 1999, an alien is subject to the transitional rules only

if he was in deportation proceedings on April 1, 1997. Clearly, petitioner was not

involved in any deportation proceedings on that date even though he was illegally

present in the United States at that time. Further, even if petitioner had been

subject only to pre-IRRIRA law, the Attorney General still could have properly

reinstated the 1981 deportation order under the former section providing for

reinstatement and removal.

      B. Failure to verify petitioner’s identity through fingerprinting. Petitioner

next argues that his removal under § 1231(a)(5) was illegal because the

immigration regulations provide that, in disputed cases, the verification of

identity must be accomplished by a comparison of fingerprints between the

previously deported alien and the alien subject to the reinstatement proceedings.

Petitioner has never disputed and does not now dispute, however, that he is in fact

the alien deported pursuant to the June 22, 1981 order of deportation. The INS

properly identified him as such and was not required to conduct a fingerprint

comparison.

      C. Alleged due process violation. Without citing any authority or

producing any record to this court that supports his allegations, petitioner argues

that he was denied due process of law because he could not make an application


                                         -7-
for cancellation of removal under 8 U.S.C. § 1229(a)(1) due to the Board of

Immigration Appeals’ (BIA) failure for a period of ten years to rule on his appeal

from the INS’s denial in 1988 of his application for adjustment of status under

a limited legalization program. He fails to state how the BIA’s failure to rule

“prevented” him from applying for cancellation of removal, and we find no merit

to his claim.

      The INS’s final order dated January 18, 1999, reinstating and executing

petitioner’s 1981 order of deportation is AFFIRMED.



                                                    Entered for the Court


                                                    David M. Ebel
                                                    Circuit Judge




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