Lara-Nieto v. Barr

• Decision Date: 27 December 2019
• Docket Number: No. 18-3383, No. 18-3385,No. 18-2232,18-2232
• Citation: 945 F.3d 1054
• Parties: Jesus LARA-NIETO, Petitioner v. William P. BARR, Attorney General of the United States, Respondent Jesus Lara-Nieto, Plaintiff - Appellant v. Chad Wolf, Acting Secretary, Department of Homeland Security; Peter Berg, District Director, U.S. Immigration & Customs Enforcement (ICE); William P. Barr, Attorney General of the United States, Defendants - Appellees Jesus Lara-Nieto, Plaintiff - Appellant v. Chad Wolf, Acting Secretary, Department of Homeland Security; Mario Ortiz, District Director, U.S. Immigration & Customs Enforcement (ICE); Peter Berg, District Director, U.S. Immigration & Customs Enforcement (ICE); William P. Barr, Attorney General of the United States, Defendants - Appellees
• Court: U.S. Court of Appeals — Eighth Circuit

945 F.3d 1054

Jesus LARA-NIETO, Petitioner

v.William P. BARR, Attorney General of the United States, Respondent

Jesus Lara-Nieto, Plaintiff - Appellant

v.Chad Wolf, Acting Secretary, Department of Homeland Security; Peter Berg, District Director, U.S. Immigration & Customs Enforcement (ICE); William P. Barr, Attorney General of the United States, Defendants - Appellees¹

Jesus Lara-Nieto, Plaintiff - Appellant

v.Chad Wolf, Acting Secretary, Department of Homeland Security; Mario Ortiz, District Director, U.S. Immigration & Customs Enforcement (ICE); Peter Berg, District Director, U.S. Immigration & Customs Enforcement (ICE); William P. Barr, Attorney General of the United States, Defendants - Appellees²

No. 18-2232

No. 18-3383

No. 18-3385

United States Court of Appeals, Eighth Circuit.

Submitted: October 16, 2019

Filed: December 27, 2019

Herbert A. Igbanugo, Jason A. Nielson, Attorney, IGBANUGO PARTNERS, Minneapolis, MN, for Petitioner.

Peter B. Berg, U.S. IMMIGRATION & NATURALIZATION SERVICE, Bloomington, MN, Carl H. McIntyre, U.S. DEPARTMENT OF JUSTICE, Civil Division, Office of Immigration Litigation, Washington, DC, Nancy Safavi, U.S. DEPARTMENT OF JUSTICE, Civil Division, Washington, DC, Scott Stewart, Deputy Assistant Attorney General, U.S. DEPARTMENT OF JUSTICE, Civil Division, Appellate Staff, Washington, DC, for Respondent William P. Barr.

Ann M. Bildtsen, Ana H. Voss, Assistant U.S. Attorneys, U.S. ATTORNEY'S OFFICE, District of Minnesota, Minneapolis, MN, Nancy Safavi, U.S. DEPARTMENT OF JUSTICE, Civil Division, Washington, DC, Scott Stewart, Deputy Assistant Attorney General, U.S. DEPARTMENT OF JUSTICE, Civil Division, Appellate Staff, Washington, DC, for Defendants - Appellees Chad F. Wolf and William P. Barr.

Ann M. Bildtsen, Ana H. Voss, Assistant U.S. Attorneys, U.S. ATTORNEY'S OFFICE, District of Minnesota, Minneapolis, MN, for Defendant - Appellee Peter Berg.

Before LOKEN, SHEPHERD, and STRAS, Circuit Judges.

SHEPHERD, Circuit Judge.

In this consolidated appeal, Jesus Lara-Nieto petitions for review of an order of the Department of Homeland Security (DHS) reinstating a prior order of removal and appeals the dismissal of his related complaints that were filed in federal district court. Having jurisdiction under 8 U.S.C. § 1252(a) and 28 U.S.C. § 1291, we deny his petition for review in the lead case and affirm the district court³ in the consolidated cases.

I.

Jesus Lara-Nieto, a citizen of Mexico, unlawfully entered the United States in 1993. In 2003, he was convicted of "Assault-Family Violence" in Texas state court. Lara-Nieto was later served with a Notice of Intent to Issue a Final Administrative Removal Order (Notice of Intent), charging him with removability as an alien convicted of an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). In describing the type of aggravated felony that Lara-Nieto committed, the Notice of Intent erroneously referred to § 101(a)(43)(B) of the Immigration and Nationality Act (INA), which defines an aggravated felony, in part, as certain drug-trafficking offenses. See 8 U.S.C. § 1101(a)(43)(B). It did, however, refer to Lara-Nieto’s conviction for "Assault-Family Violence" in the factual allegations supporting removability.

After affording Lara-Nieto an opportunity to respond, immigration authorities issued a Final Administrative Removal Order on July 1, 2003 (Removal Order). The Removal Order stated that Lara-Nieto was convicted of an aggravated felony under § 101(a)(43)(F) of the INA, which defines an aggravated felony, in part, as a crime of violence. See 8 U.S.C. § 1101(a)(43)(F). On July 15, 2003, Lara-Nieto was removed from the United States.

At some point thereafter, Lara-Nieto illegally reentered the country. On April 27, 2018, DHS reinstated the Removal Order pursuant to 8 U.S.C. § 1231(a)(5). After indicating that he was afraid to return to Mexico, Lara-Nieto participated in a reasonable-fear interview via telephone with a DHS asylum officer on May 8, 2018. During the interview, Lara-Nieto testified that he feared returning to Mexico because his hearing impairment would lead to him being persecuted and make it difficult for him to find work. He also stated that he believed that he and his family would be in danger if they returned to Mexico, as individuals who return to Mexico from the United States are perceived as wealthy and are often extorted by criminals. The asylum officer, however, found that Lara-Nieto failed to establish a reasonable fear of persecution on the basis of a protected ground or that he would be tortured if removed from the United States.

Lara-Nieto subsequently appealed the asylum officer’s reasonable-fear determination to an immigration judge (IJ). The IJ similarly found no reasonable fear of persecution on the basis of a protected ground or that Lara-Nieto would be tortured. Although Lara-Nieto also challenged the validity of the Removal Order, the IJ declined to reach the merits of that order for jurisdictional reasons. The IJ’s denial of Lara-Nieto’s appeal became the final agency decision. See 8 C.F.R. §§ 208.31(g)(1), 1208.31(g)(1) ; see also Cardoza Salazar v. Barr, 932 F.3d 704, 706 n.2 (8th Cir. 2019). Neither the asylum’s officer’s written findings nor the IJ’s order clearly distinguish between Lara-Nieto’s claims for withholding of removal and claims for protection under the Convention Against Torture (CAT); rather, they simply find that he failed to demonstrate a reasonable fear of either persecution or torture.

Lara-Nieto petitioned for review of the order reinstating the Removal Order in this Court, and while his petition was pending, he filed two lawsuits in federal district court in which he sought review of DHS’s reinstatement of the Removal Order and to compel DHS to adjudicate a motion to reopen. He also moved for temporary restraining orders to prevent his removal from the United States. The district court, however, denied his motions and dismissed both lawsuits for lack of jurisdiction. Lara-Nieto timely appealed the dismissal of his lawsuits, and those appeals were consolidated with his petition for review.

II.

We first consider whether the district court correctly dismissed Lara-Nieto’s complaints. This Court reviews de novo a district court’s dismissal of a complaint for lack of subject-matter jurisdiction. See Mohamed v. Melville, 274 F. App'x 495, 496 (8th Cir. 2008) (per curiam) (citing Hastings v. Wilson, 516 F.3d 1055, 1058 (8th Cir. 2008) ).

Lara-Nieto argues that, because the circumstances surrounding the entry of the Removal Order constitute a "gross miscarriage of justice," the district court had jurisdiction to review DHS’s order reinstating the Removal Order pursuant to § 1231(a)(5). We find his argument unpersuasive. Indeed, the relevant statute says that "[n]otwithstanding any other provision of law (statutory or nonstatutory) ... a petition for review filed with an appropriate court of appeals ... shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this chapter." 8 U.S.C. § 1252(a)(5). We have interpreted this to mean that the federal courts of appeals have exclusive jurisdiction to consider the propriety of orders reinstating prior orders of removal. See Molina Jerez v. Holder, 625 F.3d 1058, 1072 (8th Cir. 2010) ("We agree with the district court’s statement that jurisdiction to review the propriety of the Reinstatement Order rests with the court of appeals."); Ochoa-Carrillo v. Gonzales, 446 F.3d 781, 782 (8th Cir. 2006) ("[J]udicial review in the appropriate court of appeals is the sole and exclusive means to review a § 1231(a)(5) order reinstating a prior removal order[.]" (internal quotation marks omitted)). Accordingly, the district court correctly dismissed Lara-Nieto’s complaints for lack of subject-matter jurisdiction.

III.

Next, we consider whether DHS properly reinstated the Removal Order. This Court reviews reinstatement of a prior removal order for substantial evidence and will not "overturn DHS’s factual findings unless it would not be possible for any reasonable fact-finder to come to the conclusion reached by the administrator." Perez-Garcia v. Lynch, 829 F.3d 937, 940-41 (8th Cir. 2016) (internal quotation marks omitted).

Section 1231(a)(5) creates a streamlined process for reinstating prior removal orders, and it authorizes the Attorney General to reinstate a prior removal order after finding that an individual has illegally reentered the United States following removal or voluntary departure pursuant to a removal order. See Perez-Garcia, 829 F.3d at 940. DHS need only show, by clear and convincing evidence, that (1) there is a prior order of removal; (2) a subsequent departure from the United States pursuant to that order; and (3) an illegal reentry. Id. The alien may then be removed from the United States pursuant to the reinstated removal order. See id.

Lara-Nieto’s petition for review is predicated on a collateral challenge to the underlying Removal Order, which he argues is legally infirm. Specifically, he complains that: (1) the Notice of Intent erroneously charged Lara-Nieto with committing an aggravated felony as defined by 8 U.S.C. § 1101(a)(43)(B) (defining an aggravated felony, in part, as a controlled substance offense); and (2) the Notice of Intent and Removal Order failed to identify the state statute under which Lara-Nieto was actually convicted. Thus, Lara-Nieto asserts that DHS failed to adequately charge and prove the basis for removability in 2003, and he now argues that DHS’s reinstatement of the Removal Order constitutes a "gross miscarriage of justice" and violates his due process rights.

The reinstatement statute, however, prevents Lara-Nieto from attacking the validity of the underlying Removal Order in a petition for review of the reinstatement order. See 8 U.S.C. § 1231(a)(5) ("[T]he prior order of removal is ... not subject to being reopened or reviewed ...."); see also Torres-Tristan...