                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 02-1287
                                ________________

Julio Cesar Briones-Sanchez,              *
                                          *
             Petitioner,                  *
                                          *      Petition for Review of an
      v.                                  *      Order of the Immigration
                                          *      and Naturalization Service.
Gerard Heinauer, District                 *
Director, Immigration and                 *
Naturalization Service,                   *

             Respondent.

                                ________________

                                Submitted: October 9, 2002
                                    Filed: February 10, 2003
                                ________________

Before HANSEN, Chief Judge, HEANEY and MORRIS SHEPPARD ARNOLD,
      Circuit Judges.
                           ________________

HANSEN, Circuit Judge.

      Julio Cesar Briones-Sanchez petitions this court for review of an order entered
by the Respondent, District Director of the Immigration and Naturalization Service
(INS), reinstating his prior order of deportation and ordering his removal under §
241(a)(5) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1231(a)(5),
enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009-546 (1996).1 We have
jurisdiction to review an INS order to reinstate a prior deportation order pursuant to
§ 242 of the INA, 8 U.S.C. § 1252 (2000).

                                 BACKGROUND

       Julio Cesar Briones-Sanchez (Briones), a native of Mexico, came to the United
States in 1980 with his mother when he was seven months old. His mother became
a permanent legal resident in 1988. Briones married a United States citizen, and his
two children are United States citizens. Although Briones might have been eligible
to become a legal resident by virtue of his mother's status, she failed to register
Briones for some of the relevant programs while they were available. In 1997,
Briones's mother filed an immediate relative petition with the INS, which was
approved and made him eligible to receive an immigrant visa. The waiting list for
such visas, however, was years long. In 1999, Briones engaged the services of an
immigration attorney to assist in his application for adjustment of status. He states
that he immediately forwarded all correspondence from the INS to his attorney.
Briones later discovered, by a letter he received from the City of Chicago Department
of Consumer Services dated March 30, 2000, that his "attorney" was, in fact, merely
a lay person engaged in an elaborate scheme to defraud immigrants.




      1
        For the sake of uniformity, we will cite to the INA section numbers
throughout. Accord Alvarez-Portillo v. Ashcroft, 280 F.3d 858, 861 n.1 (8th Cir.
2002), cert. denied, 2003 WL 98466 (Jan. 13, 2003) ("Immigration law can be
confusing to the outsider because experts usually refer to the statutes by their INA
and IIRIRA section numbers, while most of us have access only to the codified
version of those statutes. With some reluctance, our opinion will yield to this reality
by referring to the statutes at issue by their INA and IIRIRA section numbers, with
an initial cross-reference to their very different section numbers in Title 8 of the
United States Code.").

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       Later in 1999, after being denied lawful permanent resident status, Briones was
notified by certified mail that removal proceedings had been commenced against him.
He failed to appear for both the initial and rescheduled removal hearings. On January
25, 2000, the immigration judge issued an order of removal in abstentia and, on
March 14, 2000, sent a notice for Briones to appear at INS offices. Briones alleges
that he had no knowledge of the removal order, but he does not deny receiving the
March 14, 2000, "bag and baggage" letter. Briones did not appear at INS offices and
failed to appeal the removal order or file a motion to reopen the removal proceedings.

       On November, 13, 2000, Briones appeared at INS offices in Omaha, Nebraska,
seeking to adjust his status based on his marriage to a United States citizen. Pursuant
to the warrant of removal, his petition was summarily denied and he was arrested. He
did not seek to reopen the removal proceedings at that time. Two days later, on
November 15, 2000, he was deported from the United States. Approximately eight
months later, he illegally reentered the United States without inspection. In
December 2001, he was arrested in Iowa for attempting to use a false identity to
obtain a driver's license. The District Director of the INS reinstated the previous
removal order, and Briones was deported for a second time on January 15, 2002.

                                   DISCUSSION

       Briones alleges that the reinstatement of his prior deportation order pursuant
to § 241(a)(5), without a hearing to evaluate the sufficiency of that order, denied him
due process. Essentially, Briones is challenging both the constitutionality of the
reinstatement procedures used and of the statute itself. First, Briones asserts that the
failure to hold a hearing in conjunction with the reinstatement of his removal order
violated procedural due process. Second, Briones alleges that the provision in §
241(a)(5) prohibiting review or reopening of the initial removal order is a further
denial of due process. While we agree that deportable aliens are protected by the
constitutional right to due process, see Plyer v. Doe, 457 U.S. 202, 210 (1982), we

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find that the reinstatement and deportation procedures in this case comported with the
requirements of the Constitution.

       Section 241(a)(5) was enacted to streamline the removal process for aliens who
illegally reenter this country after having been once deported.

      (5) Reinstatement of removal orders against aliens illegally reentering

      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.

INA § 241(a)(5), 8 U.S.C. § 1231(a)(5) (2000). Under this provision, a finding by
INS officers that Briones illegally reentered the United States after being deported is
sufficient to reinstate his removal order. See 8 C.F.R. § 241.8(a) (2003).
Furthermore, "[t]he alien has no right to a hearing before an immigration judge" and
is entitled only to written notice and an opportunity to "make a written or oral
statement contesting the determination." Id. § 241.8(a), (b). Briones declined to
make a statement contesting the reinstatement of his removal order, but he alleges
that § 241(a)(5) violates procedural due process because it denies any opportunity for
a hearing prior to reinstatement of a removal order. Although we have previously
declined to decide this issue, see Alvarez-Portillo, 280 F.3d at 867, we have opined
that the "streamlined notice and opportunity to be heard afforded illegal reentrants
under 8 C.F.R. § 241.8 seem quite appropriate when the only issues to be determined
are those establishing the agency's right to proceed under § 241(a)(5) – the alien's
identity, the existence of a prior removal order, and whether the alien has unlawfully
reentered." Id.


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       In order to succeed on a due process claim, an alien must prove that he was
actually prejudiced by the lack of process afforded to him. See United States v.
Torres-Sanchez, 68 F.3d 227, 230 (8th Cir. 1995). Therefore, Briones must show
that, had there been a hearing, the INS would not have reinstated his removal order.
See id. ("Actual prejudice exists where defects in the deportation proceedings may
well have resulted in a deportation that would not otherwise have occurred." (citation
and internal quotations omitted)). The only claim that Briones sought to raise in a
hearing was the alleged deficiency of the original removal order. He alleges that he
was denied due process in the initial proceedings because he did not receive sufficient
notice of the initial removal order and because he received ineffective assistance of
counsel. However, the initial order "is not subject to being reopened or reviewed."
INA § 241(a)(5), 8 U.S.C. § 1231(a)(5) (2000). As required by this provision, even
if Briones had been granted a hearing, his collateral attack on the original removal
order would have been precluded. Given the limited scope of the reinstatement
proceedings, Briones cannot demonstrate any prejudice resulting from the lack of a
hearing.

       In response to this rationale, Briones argues that § 241(a)(5)'s prohibition on
collateral challenges to the initial removal order in removal order reinstatement
proceedings is itself a violation of due process. We reject this argument for two
reasons. First, in addition to the initial removal proceedings themselves, aliens
subject to deportation have a full range of administrative and judicial procedures
available to them. See, e.g., 8 U.S.C § 1229a(b)(5) (2000) (providing a mechanism
for aliens to file a motion to reopen removal proceedings and to seek judicial review
of the disposition of the motion). It is through these procedures that an alien subject
to deportation may raise such claims as ineffective assistance of counsel or
insufficient notice. After exhausting these initial administrative remedies, see 8
U.S.C. § 1252(d)(1) (2000), aliens may also file a petition for a writ of habeas




                                         -5-
corpus.2 These procedures are sufficient for the INS to assume in removal order
reinstatement proceedings, as § 241(a)(5) requires, that the original removal order is
valid and constitutional. Thus, the limitations on the scope of inquiry enunciated in
§ 241(a)(5) do not violate an alien's right to due process.                     Accord
Alvarenga-Villalobos v. Ashcroft, 271 F.3d 1169, 1174 (9th Cir. 2001) ("[A]nother
hearing is denied only to those aliens who have already been excluded, deported, or
removed after having been given one full and fair hearing, including the right to
judicial review of that hearing. To preclude a second bite at the apple after an illegal
reentry does not offend due process.").3

       Second, Briones once again has failed to demonstrate prejudice. Even if the
statute permitted the INS or this court to review the underlying initial removal order,
Briones cannot show that the order necessarily would be vacated. The district court
in Briones's related habeas proceedings found that he had received notice, on more
than one occasion, of the initial removal proceedings pending in Chicago. Briones
does not dispute that he received a "bag and baggage letter" in March 2000. At a
minimum, he had eight months before his arrest and initial deportation in November
2000 to contest the initial removal proceedings. Additionally, the INS asserts, and


      2
        We note that Briones did file a habeas petition after his removal order was
reinstated. The district court denied that petition for lack of jurisdiction, finding that
inquiry into the initial order was barred and that Briones had failed to exhaust his
administrative remedies. Briones's application for a certificate of appealability from
that denial is currently pending in this court.
      3
        Even in the criminal arena, courts will not review the initial removal
proceeding unless the alien demonstrates that he was effectively denied judicial
review in that proceeding. See United States v. Mendoza-Lopez, 481 U.S. 828, 838-
39 (1987). This did not occur here. Briones was not denied judicial review in the
original removal proceedings. Rather, he waived his opportunity for review by
failing to file a motion to reopen the initial proceedings before he was initially
deported, and then by reentering the country illegally.

                                           -6-
Briones does not deny, that at the time of his initial removal, he was a deportable
alien.

       Although the separation of a family is an unfortunate result, we note that
Briones had ample opportunity to avoid this situation. He lived in this country for
nearly twenty years before attempting to legalize his status. His choice to reenter the
country illegally effectively precluded any further rights he may have had to seek
review of his initial removal proceedings. Given the importance of finality in
immigration proceedings, the procedural protections generally afforded to aliens
subject to deportation, and the fact that Briones has failed to demonstrate prejudice
resulting from the denial of a hearing, we conclude that there has been no due process
violation.

       For the foregoing reasons, we deny the petition for review and affirm the
reinstatement of the removal order.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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