Cordova–soto v. Holder

• Decision Date: 17 October 2011
• Docket Number: No. 10–9569.,10–9569.
• Citation: 659 F.3d 1029
• Parties: Gabriela CORDOVA–SOTO, Petitioner,v.Eric H. HOLDER, Jr., United States Attorney General, Respondent.National Immigration Project of the National Lawyers Guild, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

659 F.3d 1029

Gabriela CORDOVA–SOTO, Petitioner,

v.Eric H. HOLDER, Jr., United States Attorney General, Respondent.National Immigration Project of the National Lawyers Guild, Amicus Curiae.

No. 10–9569.

United States Court of Appeals, Tenth Circuit.

Oct. 17, 2011.

Submitted on the briefs: ^*David K. Link, Gragert, Hiebert, Gray & Link, Wichita, KS, for Petitioner.Stephen J. Flynn, Assistant Director; James A. Hurley, Attorney, United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C., for Respondent.Trina Realmuto, National Immigration Project of the National Lawyers Guild, Boston, MA, for Amicus Curiae.Before HARTZ, Circuit Judge, HOLLOWAY and PORFILIO, Senior Circuit Judges.

HOLLOWAY, Senior Circuit Judge.

Gabriela Cordova–Soto petitions for review of the Department of Homeland Security's (DHS) September 23, 2010 order reinstating her prior removal order under 8 U.S.C. § 1231(a)(5). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition for review.

I.

Ms. Cordova–Soto is a native and citizen of Mexico, who entered the United States as a child without inspection at an unknown place and time. She became a lawful permanent resident in 1991 at the age of 13. In October 2005 DHS initiated removal proceedings against Ms. Cordova–Soto by filing a Notice to Appear (NTA), charging her as removable on three grounds: (1) as an aggravated felon pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii); (2) as an alien convicted of two crimes involving moral turpitude under 8 U.S.C. § 1227(a)(2)(A)(ii); and (3) as an alien convicted of a controlled substance offense under 8 U.S.C. § 1227(a)(2)(B)(i). Ms. Cordova–Soto has three Kansas state-law convictions, including a 2005 conviction for felony possession of methamphetamine for which she was sentenced to a suspended jail term of twenty months and eighteen months' probation. This drug-possession conviction was the basis for the aggravated-felon charge in the NTA.

Ms. Cordova–Soto submitted to the Immigration Court a Stipulated Request for Issuance of Final Order of Removal, Waiver of Appearance and Hearing (Stipulation), in which she waived her right to be represented by counsel in the removal proceedings; admitted all factual allegations in the NTA; conceded all charges of removability; waived any right to apply for relief from removal; waived her right to appeal the removal order; and attested that she had executed the Stipulation voluntarily, knowingly, and intelligently. In the Stipulation Ms. Cordova–Soto acknowledged, “I will need to reapply for entrance to the United States ... and ... I may not be eligible for admission into the United States in the future.” Admin. R. at 11. The Stipulation stated further:

I understand that by accepting an order of removal, I cannot return to the United States legally for at least ten (10) years without special permission from the Attorney General. If I have been convicted of an aggravated felony, I understand that I may not legally return to the United States at any time without special permission from the Attorney General. I also understand that returning without special permission from the Attorney General could result in further removal proceedings and/or criminal prosecution, and that a conviction for illegal reentry may result in the imposition of a prison sentence of up to twenty (20) years.

Id. The immigration judge ordered Ms. Cordova–Soto removed on November 8, 2005. She was furnished with a Warning to Alien Ordered Removed or Deported, informing her that, as an aggravated felon, she was prohibited from entering or attempting to enter the United States at any time and that she would be required to obtain permission from the Attorney General in order to reapply for admission. She was removed to Mexico two days later, on November 10, 2005.

Ms. Cordova–Soto was found in Wichita, Kansas, on March 18, 2010, and she was identified as an alien who had previously been removed. She was initially held in a Kansas jail, apparently due to an outstanding warrant for her arrest on forgery charges, but she was remanded to DHS custody in September 2010. No criminal charges for illegal reentry were lodged against her, but DHS issued a Notice of Intent/Decision to Reinstate Prior Order, advising Ms. Cordova–Soto that she was subject to removal under 8 U.S.C. § 1231(a)(5), which 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.

DHS informed Ms. Cordova–Soto that she could contest its determination that she was subject to removal by reinstatement of her prior removal order. She submitted a sworn statement in which she alleged that she last entered the United States on November 27, 2005, less than a month after she had been removed to Mexico. She described how she entered the country at that time:

I purchased a ticket in Eagle Pass to San Antonio TX. They then put me in the taxi that would cross me over into the U.S. side where I could get on the passenger van that was there waiting. The taxi driver spoke to the inspector who then spoke to the rest of the passenger[s] 3 including me. He asked for ID. And then while I pretended to look for ID he moved on to the other passengers and inspected their things in the trunk. He then hit the car with his hand and waved us through.

Admin. R. at 99. Ms. Cordova–Soto also stated that she had not applied to the Attorney General for permission to reenter the United States. After “review[ing] all available evidence, the administrative file and any statements made or submitted in rebuttal,” a DHS official reinstated her prior removal order pursuant to § 1231(a)(5). Admin. R. at 1.

Ms. Cordova–Soto filed a petition for review in which she claims that (1) her underlying removal order was not lawful, and (2) her reentry into the United States after her previous removal was not illegal. On these bases she maintains that reinstatement of her previous removal order was precluded.

II.

We initially examine our jurisdiction to review Ms. Cordova–Soto's claims. She first seeks review of her underlying 2005 removal order, arguing that she submitted the Stipulation and agreed to removal based upon faulty legal advice that her drug-possession conviction was an aggravated felony that made her ineligible for relief from removal. She asks this court to hold that her underlying removal order was contrary to law and violative of her rights.

Ms. Cordova–Soto acknowledges that, under § 1231(a)(5), an underlying removal order “is not subject to being reopened or reviewed.” But she contends that 8 U.S.C. § 1252(a)(2)(D) authorizes this court to review that order to the extent she raises legal and constitutional challenges to it. Section 1252(a)(2)(D) does preserve our ability to review “constitutional claims or questions of law,” notwithstanding other provisions in the Immigration and Nationality Act (INA) that limit or eliminate judicial review. But with two stated exceptions, the savings clause in § 1252(a)(2)(D) permitting review of such claims does not apply to jurisdictional limitations within that section. See Lorenzo v. Mukasey, 508 F.3d 1278, 1281 (10th Cir.2007).

Another provision in § 1252 provides that “[t]he petition for review must be filed not later than 30 days after the date of the final order of removal.” 8 U.S.C. § 1252(b)(1). We have construed the filing of a timely petition for review as mandatory and jurisdictional. See Nahatchevska v. Ashcroft, 317 F.3d 1226, 1227 (10th Cir.2003). This jurisdictional limitation within § 1252 therefore “survived the enactment of ... § 1252(a)(2)(D).” Lorenzo, 508 F.3d at 1281 n. 4; see also Sharashidze v. Mukasey, 542 F.3d 1177, 1178–79 (7th Cir.2008) (“[Section] 1252(a)(2)(D), which authorizes this court to decide constitutional claims and questions of law, is explicitly constrained by the 30–day time limit in § 1252(b)(1).”). Thus, because Ms. Cordova–Soto failed to file her petition for review within thirty days of her 2005 removal order, we lack jurisdiction to review that order, including constitutional claims or questions of law.

Ms. Cordova–Soto also challenges the September 23, 2010 reinstatement order. “[W]e have jurisdiction to hear petitions for direct review of reinstatement orders under ... § 1252.” Duran–Hernandez v. Ashcroft, 348 F.3d 1158, 1162 n. 3 (10th Cir.2003). We proceed, then, to consider her claim that DHS misconstrued, and therefore misapplied one of the requirements for reinstatement of a removal order.

III.

Ms. Cordova–Soto argues that, because her entry into the United States in November 2005 was procedurally regular, she did not reenter the United States illegally; therefore, reinstatement of her previous removal order was precluded. Her argument raises a question of statutory construction, which we review de novo. See Brue v. Gonzales, 464 F.3d 1227, 1232 (10th Cir.2006). “If the statutory language makes the intent of Congress clear and unambiguous, we give full effect to that intent[.]” Al–Salehi v. INS, 47 F.3d 390, 392 (10th Cir.1995) (quotations omitted). But we will defer to the Board of Immigration Appeals' (BIA) reasonable interpretation of an ambiguous provision of the INA. See id.

A.

The Attorney General is authorized to reinstate a prior removal order against an illegally reentering alien. See 8 U.S.C. § 1231(a)(5) (“If the Attorney General finds that an alien has reentered the United States illegally after having been removed ... the prior order of removal is reinstated from its original date....”). The implementing regulation provides that an immigration officer...