508 F.3d 1278 (10th Cir. 2007), 06-9505, Lorenzo v. Mukasey

Docket Nº06-9505.
Citation508 F.3d 1278
Party NameAdriana LORENZO, Petitioner, v. Michael B. MUKASEY, Attorney General, [*] Respondent.
Case DateNovember 20, 2007
CourtUnited States Courts of Appeals, Court of Appeals for the Tenth Circuit

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508 F.3d 1278 (10th Cir. 2007)

Adriana LORENZO, Petitioner,

v.

Michael B. MUKASEY, Attorney General, [*] Respondent.

No. 06-9505.

United States Court of Appeals, Tenth Circuit.

November 20, 2007

PETITION FOR REVIEW OF AN ORDER OF THE UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Lead Agency Case No. A77 225 232)

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[Copyrighted Material Omitted]

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Submitted on the briefs:[**]

Hakeem Ishola, Salt Lake City, Utah, and J. Christopher Keen and Edward L. Carter, Orem, Utah, for Petitioner.

Stephen J. Flynn, Senior Litigation Counsel, and Mary Jane Candaux, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

Before KELLY, BALDOCK, and BRISCOE, Circuit Judges.

BALDOCK, Circuit Judge.

Petitioner Adriana Lorenzo seeks review of the Department of Homeland Security's (DHS) January 2006 reinstatement order, which revived a November 1998 order removing her from the United States. First, Lorenzo claims the original 1998 removal order was legally defective and thus not subject to reinstatement. Second, Lorenzo alleges DHS, in reinstating her prior order of removal, failed to comply with 8 C.F.R. § 241.8, which provides the procedure for reinstating removal orders under the Immigration and Nationality Act (INA). Third, Lorenzo argues the procedure established by 8 C.F.R. § 241.8(a) fails to comport with both 8 U.S.C. § 1229a(a)(1) and the Due Process Clause of the Fifth Amendment. See U.S. Const. amend. V. We have jurisdiction under 8 U.S.C. § 1252, and deny the petition for review.

I.

Petitioner, a citizen of Mexico, attempted to enter the United States on November 19, 1998 by presenting a green card, under the name Hortencia Perez-Cortez, to an immigration officer at a California port of entry. Immigration officials determined Lorenzo's green card was not genuine, in violation of 8 U.S.C. § 1182(a)(6)(C)(i). Accordingly, officials summarily deported her under 8 U.S.C. § 1225(b)(1). Shortly thereafter, Lorenzo reentered the United States. Petitioner claims she passed through an official point of entry in the back seat of a car, without immigration officials examining or questioning her documentation.

Immigration officials' next encounter with Lorenzo occurred in 2006 after her husband, an American citizen, submitted a Petition for Alien Relative.1 A fingerprint comparison showed that immigration officials had previously removed Lorenzo from the United States. Petitioner admitted she had previously used the name Adriana Esparza-Jimenez and that immigration officials had removed her from the country in 1998. After a review of three DHS computer databases and Lorenzo's immigration file confirmed her statements, DHS denied Lorenzo's Application to Register Permanent Residence or Adjust Status. Instead, DHS determined Lorenzo was subject to removal under 8 U.S.C. § 1182(a)(9)(A)(i). DHS issued a Notice of Intent to reinstate Lorenzo's prior removal

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order under 8 U.S.C. §1231(a)(5). Petitioner did not contest the agency's findings. DHS then issued an order reinstating Lorenzo's prior deportation order in January 2006. This timely petition for review followed.

II.

At the outset, we examine our jurisdiction to review Petitioner's claims. We must carefully consider our jurisdiction to review Petitioner's first claim related to the underlying 1998 removal order. Our pre-REAL ID Act precedent held that 8 U.S.C. § 1231(a)(5) universally precluded our review of underlying removal orders.2 See Garcia-Marrufo v. Ashcroft, 376 F.3d 1061, 1063-64 (10th Cir. 2004). The REAL ID Act of 2005's addition of 8 U.S.C. § 1252(a)(2)(D) to the INA, however, alters our prior holding. Under § 1252(a)(2)(D), only the jurisdictional limitations found in § 1252 - excepting those in § 1252(a)(2)(B) & (C), which are inapplicable here - apply generally to our review of "constitutional claims or questions of law."3 See Ballesteros v. Ashcroft, 452 F.3d 1153, 1157 (10th Cir. 2006) ("[U]nless another subparagraph of § 1252 precludes review of . . . claims that raise either constitutional or legal questions, we . . . have jurisdiction to review those claims."). Because § 1231(a)(5)'s jurisdictional limitation is clearly outside the scope of § 1252, we may no longer categorically hold that we lack jurisdiction to review constitutional and statutory claims related to all underlying removal orders. See Ramirez-Molina v. Ziglar, 436 F.3d 508, 513-14 (5th Cir. 2006) (holding that § 1252(a)(2)(D) "prevents" the operation of § 1231(a)(5) in cases in which "an underlying order is questioned on constitutional or legal grounds"); accord Debeato v. Att'y Gen. of the United States, No. 05-3235, 2007 WL 2916150, at *2-3d 231, 233-35 (3d Cir. 2007) (adopting the Fifth Circuit's reasoning in Ramirez-Molina).

Unfortunately, this modification of the INA and our precedent does not aid Petitioner. Section 1252(a)(2)(D) preserves § 1252(a)(2)(A). Section 1252(a)(2)(A) provides that "no court shall have jurisdiction to review" orders of removal entered under 8 U.S.C. § 1225(b)(1), "except as provided in subsection (e) of this section." The avenues for review provided by § 1252(e) are strictly limited and do not apply here. See Ochoa-Carrillo v. Gonzales, 446 F.3d 781, 782 (8th Cir. 2006) (explaining that "the limited habeas review of removal orders issued under § 1225(b)(1) that is authorized by § 1252(e)(2) may not be conducted in a § 1231(a)(5) reinstatement proceeding"). Petitioner's 1998 removal order was issued pursuant to § 1225(b)(1). As a result, we lack jurisdiction to review any constitutional or statutory claims related to the underlying removal order in this case.4

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We next consider our jurisdiction to review Petitioner's second and third claims relating to the 2006 reinstatement order. Prior to the enactment of the REAL ID Act of 2005, we held that a reinstatement order is a "final order of removal" reviewable under 8 U.S.C. § 1252(a)(1). See Berrum-Garcia v. Comfort, 390 F.3d 1158, 1162 (10th Cir. 2004); Garcia-Marrufo v. Ashcroft, 376 F.3d 1061, 1063 (10th Cir. 2004); Duran-Hernandez v. Ashcroft, 348 F.3d 1158, 1162 n.3 (10th Cir. 2003). The REAL ID Act's modification of the INA confirms our previous holding and dispels any lingering doubts as to our jurisdiction to review reinstatement orders. See Duran-Hernandez, 348 F.3d at 1162 n.3. Because the jurisdictional limitations found in 8 U.S.C. § 1231(a)(5) are outside the scope of § 1252, § 1252(a)(2)(D)'s jurisdiction saving provision clearly applies. See Ballesteros, 452 F.3d at 1157; see also Debeato, 505 F.3d at *2-3; Ramirez-Molina, 436 F.3d at 513-14. In enacting § 1252(a)(2)(D), Congress clearly provided for our review of "constitutional claims or questions of law" related to reinstatement orders. We have construed § 1252(a)(2)(D)'s "constitutional claims or questions of law" language to reach "those issues that were historically reviewable on habeas," namely "constitutional and statutory-construction questions, not discretionary or factual questions." Diallo v. Gonzales, 447 F.3d 1274, 1281-82 (10th Cir. 2006). Petitioner's allegations relating to the 2006 reinstatement order touch upon matters of constitutional law and statutory construction. We, therefore, have jurisdiction to review these claims under 8 U.S.C. § 1252(a)(2)(D).

III.

Although petitions for review have replaced habeas petitions, in the context of orders of removal, our standard of review remains the same. See Silva-Rengifo v. Att'y Gen. of United States, 473...

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