Jesus Herrera v. Loretta E. Lynch , 637 F. App'x 437 ( 2016 )

FILED
NOT FOR PUBLICATION
MAR 01 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JESUS LEONEZ HERRERA, a/k/a No. 11-72955
Francisco Mina Corrales,
Agency No. A077-225-296
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Department of Homeland Security
Submitted February 8, 2016**
Pasadena, California
Before: BERZON, DAVIS***, and OWENS, Circuit Judges.
Jesus Leonez Herrera, a native and citizen of Mexico, petitions for review of
the Department of Homeland Security’s (“DHS”) October 5, 2011 order reinstating
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Andre M. Davis, Senior Circuit Judge for the U.S.
Court of Appeals for the Fourth Circuit, sitting by designation.
his April 2000 expedited removal order. We have jurisdiction pursuant to 8 U.S.C.
§ 1252. Our review, however, is “limited to confirming the agency’s compliance
with the reinstatement regulations.” Garcia de Rincon v. DHS, 539 F.3d 1133,
1137 (9th Cir. 2008). We deny in part and dismiss in part the petition for review.
1. The DHS did not err in issuing Herrera’s reinstatement order, as the
record shows that Herrera is an alien, he is the subject of a prior expedited order of
removal, and he illegally reentered the country without inspection days after his
expedited removal order was executed. See id. (observing that our jurisdiction is
limited to reviewing the “three discrete inquiries an immigration officer must make
in order to reinstate a removal order: (1) whether the petitioner is an alien; (2)
whether the petitioner was subject to a prior removal order; and (3) whether the
petitioner re-entered illegally”); 8 U.S.C. § 1231(a)(5) (providing that, if the DHS
“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”).
2. While Herrera argues that he cannot have an outstanding order of
removal reinstated against him because he has never been ordered removed by an
immigration judge, no such requirement exists. The Immigration and Nationality
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Act (“INA”) provides that “[a]ny alien who falsely represents, or has falsely
represented, himself or herself to be a citizen of the United States for any purpose
or benefit under this chapter . . . is inadmissible,” 8 U.S.C. § 1182(a)(6)(C)(ii)(I),
and requires any immigration officer who deems an alien inadmissible under
§ 1182(a)(6)(C) to “order the alien removed from the United States without further
hearing or review unless the alien indicates either an intention to apply for asylum .
. . or a fear of persecution,” 8 U.S.C. § 1225(b)(1)(A)(i).
3. Similarly, an immigration officer validly reinstated Herrera’s prior
expedited removal order pursuant to 8 U.S.C. § 1231(a)(5). While Herrera
highlights that his Warrant of Removal, as provided by the DHS, contains an
erroneously checked box indicating that he “is subject to removal/deportation from
the United States, based upon a final order by: an immigration judge in exclusion,
deportation, or removal proceedings,” the Notice of Intent/Decision to Reinstate
Prior Order clearly informed Herrera that the reinstatement determination was
made by an immigration officer in accordance with § 1231(a)(5). Moreover, to the
extent that Herrera raises a procedural due process challenge on account of this
error, he has not established prejudice. See Lata v. INS, 204 F.3d 1241, 1246 (9th
Cir. 2000) (explaining that, to prevail on a due process challenge, an alien must
show error and prejudice).
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4. Finally, we lack jurisdiction to consider any collateral attacks Herrera
wages against his April 2000 expedited removal order or his October 2011
reinstatement order. See Garcia de Rincon, 539 F.3d at 1137 (noting that,
“whatever relief might be gained by the operation of § 1252(a)(2)(D) and the
‘gross miscarriage’ standard, it is unavailable to [petitioner] because her
underlying removal order is an expedited removal order that is subject to additional
jurisdictional bars—8 U.S.C. §§ 1252(a)(2)(A) and 1252(e)”).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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