Zamora-Vallejo v. Holder , 378 F. App'x 386 ( 2010 )

Case: 08-61111 Document: 00511106697 Page: 1 Date Filed: 05/11/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 11, 2010
No. 08-61111 Lyle W. Cayce
Clerk
GRACIELA ZAMORA-VALLEJO,
Petitioner,
v.
ERIC H. HOLDER JR., United States Attorney General,
Respondent.
On Petition for Review of a Reinstated
Order of Removal of an Immigration Judge
Agency No. A090-944-085
Before KING, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
In this immigration case, petitioner Graciela Zamora-Vallejo challenges
a November 18, 2008 order, issued by the Department of Homeland Security
(DHS), reinstating her March 5, 1999 removal order pursuant to § 241(a)(5) of
the Immigration and Nationality Act (INA), 8 U.S.C. § 1231(a)(5). Zamora-
Vallejo argues that the reinstatement of the order without a hearing violated her
right to due process and that there was no proof that she had been previously
*
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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No. 08-61111
ordered removed from the United States. For the following reasons, we deny her
petition for review.
I. FACTUAL BACKGROUND
Zamora-Vallejo is a native and citizen of Mexico who entered the United
States without inspection in January of 1977 and became a lawful permanent
resident in November of 1991. On November 14, 1997, Zamora-Vallejo was
convicted of conspiracy to transport undocumented aliens within the United
States. In June of 1998, the Immigration and Naturalization Service (INS)
issued a Notice to Appear, charging Zamora-Vallejo with being removable under
§ 237(a)(2)(A)(iii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien who has
been convicted of an aggravated felony.
The government contends that Zamora-Vallejo was removed on March 9,
1999 in accordance with a March 5, 1999 order of removal issued by an
Immigration Judge (IJ) sitting in San Francisco, California. According to the
government, Zamora-Vallejo subsequently reentered the United States illegally
sometime in March of 1999. Zamora-Vallejo argues that the original copy of the
removal order contains no date and no name and that there is no proof that she
was ever ordered removed. She also contends that she applied for reentry in
Hidalgo, Texas on June 4, 2004 and received permission from the DHS to enter
the United States in the form of a stamp on her passport indicating that she had
been “processed for I-551” as a lawful permanent resident. The government
denies that Zamora-Vallejo has ever received such permission.
II. PROCEDURAL HISTORY
On November 14, 2008, the DHS interviewed Zamora-Vallejo in a Texas
jail where she was incarcerated for a traffic offense. The DHS then issued
Zamora-Vallejo a “Notice of Intent/Decision to Reinstate Prior Order” and
informed her that it would reinstate the 1999 removal order. Cf. 8 U.S.C. §
1231(a)(5) (reinstatement of removal orders against aliens reentering illegally);
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8 C.F.R. § 241.8. The form advised Zamora-Vallejo that she could contest the
reinstatement order by making an oral or written statement to the immigration
officer. She declined to make any statement and refused to sign the form.
Zamora-Vallejo filed a timely petition for review with this court.
III. ANALYSIS
We have jurisdiction to review the 2008 reinstatement order but not the
underlying 1999 order of removal. See 8 U.S.C. § 1231(a)(5) (providing that a
“prior order of removal . . . is not subject to being reopened or reviewed”); Ojeda-
Terrazas v. Ashcroft, 290 F.3d 292, 294–95 (5th Cir. 2002).1 The government
contends that Zamora-Vallejo had failed to exhaust her administrative remedies
under the INA because she did not raise an objection to her reinstatement before
the immigration officer. Because we find that Zamora-Vallejo cannot prevail on
the merits of her petition, we pretermit this jurisdictional question. See Madriz-
Alvarado v. Ashcroft, 383 F.3d 321, 327-28 (5th Cir. 2004) (pretermitting
jurisdictional question where collateral attack on the removal order could be
denied on the merits).
1
However, we have observed, in the context of a collateral attack on a reinstated
removal order, that the limit on our jurisdiction set forth in § 1231(a)(5) does not bar review
in cases challenging an underlying removal order on constitutional or other legal grounds.
Ramirez-Molina v. Ziglar, 436 F.3d 508, 513-14 (5th Cir. 2006); see also 8 U.S.C. §
1252(a)(2)(D). Zamora-Vallejo urges us to review the 1999 removal order under United States
v. Mendoza-Lopez, 481 U.S. 828 (1987). In Mendoza-Lopez, the Supreme Court held that in
cases “where the defects in an administrative proceeding foreclose judicial review of that
proceeding, an alternative means of obtaining judicial review must be made available before
the administrative order may be used to establish conclusively an element of a criminal
offense.” Id. at 838 (footnote omitted). Zamora-Vallejo’s citation to Mendoza-Lopez is
unavailing because a proceeding under § 1231(a)(5) does not involve a criminal sanction for
an illegal reentry but merely the reinstatement of a prior removal order. See Fernandez-
Vargas v. Gonzales, 548 U.S. 30, 44 (2006). Furthermore, Zamora-Vallejo presents only
conclusory arguments that the 1999 order was “defective” and violated her due-process rights.
These arguments have not been properly briefed and are therefore waived. McIntosh v.
Partridge, 540 F.3d 315, 325 n.12 (5th Cir. 2008) (citation omitted).
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A. The Prior Removal Order
Zamora-Vallejo contends that the administrative record does not contain
sufficient proof that she was subject to a prior deportation order, a requirement
for reinstatement of a removal order under § 1231(a)(5). See 8 C.F.R. § 241.8(a).
She bases this argument on the fact that the copy of the March 5, 1999 removal
order that was included in the original administrative record appears to be
unsigned and does not include her name.
The government concedes that the copy is of extremely poor quality and
has filed a legible copy along with a motion to supplement the administrative
record, which the clerk of the court has granted. The new copy clearly indicates
that Zamora-Vallejo is the alien subject to the March 5, 1999 order and that the
order was properly signed by an IJ. Therefore, we find no reversible error. See
Mireles-Zapata v. Ridge, 76 F. App’x 546, 547 (5th Cir. 2003) (unpublished)
(finding no reversible error with respect to an alien’s claim that the
administrative record did not contain a copy of the removal order after the
government supplemented the record with a copy).
B. The I-551 Stamp
Zamora-Vallejo next argues that she received a stamp on her passport
stating “I-551 Temporary Evidence of Lawful Admission for Permanent
Residence,” which establishes that she lawfully entered the country in 2004.
The government argues that the document is outside of the administrative
record and therefore not properly before us. We agree. “It is a bedrock principle
of judicial review that a court reviewing an agency decision should not go outside
the administrative record.” Goonsuwan v. Ashcroft, 252 F.3d 383, 390 n.15 (5th
Cir. 2001) (citation omitted). We do not sit “as an administrative agency for the
purpose of fact-finding in the first instance.” Yahkpua v. Immigration and
Naturalization Serv., 770 F.2d 1317, 1320 (5th Cir. 1985) (citation omitted). As
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Zamora-Vallejo has made no motion to supplement the administrative record
with the I-551 stamp, we will not consider it.2
Even if we were to consider this document, it is far from certain that it
would have had any impact on the decision to reinstate her removal order. As
the government emphasizes in its brief, the name on the passport is “Zamora-
Ballejo,” which raises the question of whether this document does in fact belong
to Zamora-Vallejo. In order to obtain this stamp, Zamora-Vallejo must have
claimed that she was eligible to obtain an I-551 Lawful Permanent Resident
card, but her removal in 1999 rendered her ineligible to receive this card. See
8 C.F.R. § 1.1(p) (providing that lawful permanent resident status “terminates
upon entry of a final administrative order of exclusion, deportation, or removal”).
Assuming that Zamora-Vallejo had received this stamp through the error of the
DHS—as opposed to fraud—her reentry was not lawful under § 1231(a)(5). See
United States v. Trevino-Martinez, 86 F.3d 65, 67 (5th Cir. 1996) (affirming the
conviction, under the criminal reentry statute, 8 U.S.C. § 1326, of an alien who
had obtained a visa from the United States Consulate despite having been
previously deported); United States v. Leon-Leon, 35 F.3d 1428, 1430 (9th Cir.
1994) (affirming the conviction for illegal reentry of an alien who had illegally
reentered the United States with a previously issued lawful permanent
2
Because we conclude that Zamora-Vallejo has failed to demonstrate actual prejudice
with respect to her due-process claim, we decline to reach the question of whether, in appeals
from reinstatement orders, due process requires us to consider material that is not part of the
administrative record. However, we note that the Sixth and the Ninth Circuits have expressed
concern that, because § 1231(a)(5) does not give aliens a right to place evidence into the
administrative record, a court may have almost no record to review if the alien contests one
of the predicates for removal. Bejjani v. Immigration and Naturalization Serv., 271 F.3d 670,
675–76 (6th Cir. 2001), abrogated on other grounds by Fernandez-Vargas v. Gonzales, 548 U.S.
30, 36 n.5 (2006); Castro-Cortez v. Immigration and Naturalization Serv, 239 F.3d 1037,
1049–50 (9th Cir. 2001), abrogated on other grounds by Fernandez-Vargas, 548 U.S. at 36 n.5;
see also Gomez-Chavez v. Perryman, 308 F.3d 796, 802 (7th Cir. 2002) (reserving the question
of “what kind of procedures” would be “necessary” for an alien who challenges the factual basis
for reinstatement).
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residence card). Section 1231(a)(5) applies to any alien found to have “reentered
the United States illegally”; there is no qualifying language restricting
reinstatement to only those aliens who enter illegally without inspection. Id.
C. Due-Process Claim
Zamora-Vallejo claims that the reinstatement proceedings violated her
right to due process because she was not granted a hearing before an IJ. We
review due-process challenges de novo. De Zavala v. Ashcroft, 385 F.3d 879, 883
(5th Cir. 2004). An alien seeking to challenge removal proceedings on due-
process grounds must make “an initial showing of substantial prejudice.” Anwar
v. Immigration & Naturalization Serv., 116 F.3d 140, 144 (5th Cir. 1997)
(citation omitted). Zamora-Vallejo contends that the removal order would not
have been reinstated if she had been allowed to submit the I-551 stamp as
evidence of her lawful entry. We are hard pressed to see how Zamora-Vallejo
can assert that the reinstatement proceedings did not allow her to present this
evidence when she made no attempt to do so before her hearing officer. See
Miller v. Mukasey, 539 F.3d 159, 164 (2d Cir. 2008) (“[W]e now hold that when
an alien declines to challenge at the agency level the findings that support
reinstatement of a prior order of removal, [she] has no grounds to complain in
court that the reinstatement procedures deprived [her] of the due process of
law.”).
Zamora-Vallejo also argues that her due-process rights were violated
because she was denied the opportunity to obtain discretionary waiver of
removal, which was formerly available under § 212(c) of the INA. This argument
is unavailing. In order to prevail on a due-process claim, an alien must
demonstrate that she has been denied a liberty or property interest warranting
due-process protection. See Ahmed v. Gonzales, 447 F.3d 433, 440 (5th Cir.
2006). We have held that an alien does not have a due-process right to a
discretionary waiver of removal. United States v. Lopez-Ortiz, 313 F.3d 225, 231
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(5th Cir. 2002) (“[Section] 212(c) relief, because it is available within the broad
discretion of the Attorney General, is not a right protected by due process.”); see
also Nguyen v. Dist. Dir., Bureau of Immigration & Customs Enforcement, 400
F.3d 255, 259 (5th Cir. 2005).
For the foregoing reasons, the petition for review is DENIED.
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