ag --------------------------------------------------------X Horacio H. Garcia-Villeda v. Michael B. Mukasey,∗ Attorney General of the United States

1
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
07-0283-ag
Garcia-Villeda v. Mukasey
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
-------------
August Term 2007
Argued: March 25, 2008 Decided: July 8, 2008
Docket No. 07-0283-ag
--------------------------------------------------------X
Horacio H. Garcia-Villeda,
Petitioner,
- against -
Michael B. Mukasey,∗ Attorney General of the United States,
Respondent.
--------------------------------------------------------X
Before: JACOBS, Chief Judge, and FEINBERG and HALL, Circuit
Judges.
Petitioner Horacio H. Garcia-Villeda seeks review of a decision
of the U.S. Immigration and Customs Enforcement reinstating a prior
order of deportation for illegal entry. We deny petitioner’s request
for vacatur of the reinstatement order and hold that (1) 8 C.F.R. §
241.8 constitutes a valid interpretation of the reinstatement of
removal statute, 8 U.S.C. § 1231(a)(5); (2) petitioner failed to show
prejudice resulting from the reinstatement of his prior deportation
order; (3) the reinstatement of removal statute precludes any
collateral review of the underlying deportation proceeding; and (4)
reinstatement of the prior deportation order without prior
adjudication of petitioner’s pending petitions for Waiver of Grounds
of Excludability and for Permission to Reapply for Admission was
proper, because, as an illegal reentrant, petitioner was inegilible
∗ Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Michael B.
Mukasey is substituted for Alberto Gonzales as Respondent.

-- 1 of 20 --

2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
for any discretionary relief under the immigration laws and could
only apply for permission to reapply for admission after having
resided outside the U.S. for a minimum of ten years.
MICHAEL P. DiRAIMONDO, DiRaimondo & Masi, LLP, Melville, NY, for
Petitioner.
SCOTT REMPELL, Trial Attorney, Office of Immigration Litigation,
JEFFREY S. BUCHOLTZ, Acting Assistant Attorney General, Civil
Division, LINDA S. WERNERY, Assistant Director, U.S. Department
of Justice, Washington, DC, for Respondent.
FEINBERG, Circuit Judge:
Petitioner Horacio H. Garcia-Villeda seeks review of a December
28, 2006 order of the Department of Homeland Security (“DHS”),
Immigration and Customs Enforcement (“ICE”), reinstating a prior
order of deportation for illegal entry, entered against petitioner in
August 1996. The issues before us are whether elimination of the
requirement of a hearing before an immigration judge, pursuant to 8
C.F.R. § 241.8 (2001), is consistent with the reinstatement of
removal statute, 8 U.S.C. § 1231(a)(5); whether the reinstatement of
removal procedure set forth in 8 C.F.R. § 241.8, both as applied in
this case and on its face, comports with the Due Process Clause of
the Fifth Amendment; whether the original deportation order could be
constitutionally reinstated despite allegations of due process
violations in the original proceeding; and whether the ICE properly
reinstated the underlying deportation order without first
adjudicating petitioner’s pending applications for Waiver of Grounds
of Excludability and for Permission to Reapply for Admission.

-- 2 of 20 --

3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
I. BACKGROUND
Petitioner, a native and citizen of Honduras, was apprehended
for entering the United States (hereafter “U.S.”) without inspection
in August 1996. On August 27, 1996, he was ordered deported by an
immigration judge, a ruling he did not appeal to the Board of
Immigration Appeals (“BIA”) or contest in a federal court. A warrant
for removal was issued, and petitioner was deported on September 5,
1996.
Petitioner reentered the U.S. illegally in May 1997. In June
1998, he married Martha Vienna Paz, a U.S. citizen, with whom he now
has two children.
On December 28, 2006, petitioner appeared for an interview
before an ICE officer to discuss his immigration status. During the
interview, petitioner admitted both his illegal reentry into the U.S.
and his earlier deportation in September 1996. On the same day, after
the interviewing officer verified petitioner’s statements and his
identity, the Acting Supervisory Deportation Officer reinstated the
prior deportation order. Since then, petitioner has been detained in
Elizabeth, New Jersey.
In January 2007, petitioner was interviewed to determine whether
he had a reasonable fear of persecution in his country of origin,
which would entitle him to withholding of removal and protection
under the Convention Against Torture. After a hearing, in March 2007,

-- 3 of 20 --

4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
an immigration judge ruled against petitioner. The BIA affirmed in
July 2007, and petitioner did not seek review of the BIA’s decision.
Thereafter, petitioner filed a timely petition for review of the
December 28, 2006 reinstatement of removal order.
II. DISCUSSION
In 1996, as part of a sweeping overhaul of the immigration laws,
Congress enacted the Illegal Immigration Reform and Immigrant
Responsibility Act, Pub. L. No. 104-208, div. C, 110 Stat. 3009
(“IIRIRA”). The IIRIRA, among other things, repealed § 242(f) of the
Immigration and Nationality Act (“INA”), 8 U.S.C. § 1252(f) (repealed
1996), and adopted INA § 241(a)(5), 8 U.S.C. § 1231(a)(5) (hereafter
“INA § 241(a)(5)” or the “reinstatement of removal statute”).1 This
section became effective on April 1, 1997.
In 1997, the Attorney General aligned the implementing
regulations with the new statutory language, by replacing 8 C.F.R. §
242.23(b) (repealed 1997) –- which required a reinstatement hearing
before an immigration judge –- with 8 C.F.R. § 241.8, which changes
1 INA § 241(a)(5), 8 U.S.C. § 1231(a)(5) 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.

-- 4 of 20 --

5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
the hearing requirement.2 Under 8 C.F.R. § 241.8, once the immigration
officer has established that the alien is indeed an illegal reentrant
subject to the reinstatement of removal statute, the officer must
order the alien “removed under the previous order of exclusion,
deportation, or removal in accordance with section 241(a)(5) of the
[INA].” 8 C.F.R. § 241.8(c).
Petitioner argues that the regulation is an impermissible
construction of the statute, because it contravenes the explicit
mandate of INA § 240, 8 U.S.C. § 1229a(a)(1), that removal
proceedings be conducted before an immigration judge. Petitioner also
challenges the regulation on constitutional grounds, alleging that,
both on its face and as applied in his case, it violates the Due
Process Clause of the Fifth Amendment. In addition, petitioner claims
that the underlying deportation order itself deprived him of due
process and thus was not subject to reinstatement. Finally,
petitioner contends that, even if the regulation is valid, the ICE
was precluded from reinstating the earlier order without first
2 8 C.F.R. § 241.8 states in pertinent part:
(a) Applicability. An alien who illegally reenters the United
States after having been removed, or having departed
voluntarily, while under an order of exclusion, deportation,
or removal shall be removed from the United States by
reinstating the prior order. The alien has no right to a
hearing before an immigration judge in such circumstances. In
establishing whether an alien is subject to this section, the
immigration officer shall determine the following: (1)
Whether the alien has been subject to a prior order of
removal. . . . (2) The identity of the alien, i.e., whether
the alien is in fact an alien who was previously removed . .
. . [and] (3) Whether the alien unlawfully reentered the
United States.

-- 5 of 20 --

6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
adjudicating petitioner’s then-pending petitions for Waiver of
Grounds of Excludability and for Permission to Reapply for Admission,
which, he believes, would have been successful. We address each
argument in turn.
A. Challenge to the Validity of 8 C.F.R. § 241.8.
Section 240 of the INA, entitled “Removal proceedings,” requires
that “[a]n immigration judge shall conduct proceedings for deciding
the inadmissibility or deportability of an alien.” 8 U.S.C. §
1229a(a)(1). The section further provides:
Unless otherwise specified in this chapter, a proceeding
under this section shall be the sole and exclusive
procedure for determining whether an alien may be
admitted to the United States or, if the alien has been
so admitted, removed from the United States.
8 U.S.C. § 1229a(a)(3) (emphasis added). Petitioner claims that this
language clearly expresses congressional intent to extend the
requirement of a hearing before an immigration judge to all
proceedings –- including reinstatement of prior deportation orders –-
that result in removal of an alien from the U.S. Petitioner argues
that, since Congress has not specifically exempted reinstatement
proceedings from the hearing requirement, and since a hearing was
provided to aliens subject to reinstatement for over four decades
under the prior statute and the implementing regulations, the
procedure prescribed by INA § 240 is the “sole and exclusive
procedure for determining” whether an earlier deportation order

-- 6 of 20 --

7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
should be reinstated. In petitioner’s view, the implementing
regulation that confers upon immigration officers, not judges, the
authority to reinstate without a hearing a prior deportation order
against an illegal reentrant is in direct conflict with INA § 240 and
thus invalid.
To assess the validity of the regulation at issue, we apply the
two-prong test enunciated in Chevron, U.S.A., Inc. v. Natural Res.
Def. Council, Inc., 467 U.S. 837, 842-43 (1984). Under the first
prong of Chevron, we determine “whether Congress has directly spoken
to the precise question at issue,” id. at 842, i.e., here, whether a
prior removal order may be reinstated without a full hearing before
an immigration judge. “If the intent of Congress is clear, that is
the end of the matter . . ..” Id. However, if the statute is found to
be ambiguous, the question for us under the second prong “is whether
the agency’s answer is based on a permissible construction of the
statute.” Id. at 843.
The validity of the regulation implementing the reinstatement of
removal statute is a matter of first impression in this circuit, but
we are not without guidance on the question. Every other circuit that
has considered the issue has upheld the regulation as a valid
interpretation of the INA. See Lorenzo v. Mukasey, 508 F.3d 1278,
1283-84 (10th Cir. 2007); Morales-Izquierdo v. Gonzales, 486 F.3d
484, 489-95 (9th Cir. 2007) (en banc); De Sandoval v. U.S. Att’y
Gen., 440 F.3d 1276, 1280-83 (11th Cir. 2006); Ochoa-Carrillo v.

-- 7 of 20 --

8
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
Gonzales, 437 F.3d 842, 846 (8th Cir. 2006); Lattab v. Ashcroft, 384
F.3d 8, 17-20 (1st Cir. 2004); see also Tilley v. Chertoff, 144 F.
App’x 536, 539-40 (6th Cir. Aug. 15, 2005) (unpublished).
(1) Chevron Step One. Petitioner correctly points out that INA §
241(a)(5) does not specify the procedures to be followed by the
Attorney General in reinstating an earlier deportation order.
However, petitioner errs in assuming that, because Congress did not
explicitly specify those procedures, it intended that reinstatement
proceedings be governed by INA § 240.
Petitioner’s primary reliance on the direction of INA § 240 that
a full-fledged hearing before an immigration judge “be the sole and
exclusive procedure for determining whether an alien” will be
deported from the U.S., 8 U.S.C. § 1229a(a)(3),3 is misplaced. This
provision requires a formal hearing in removal proceedings that
concern only aliens already admitted to the U.S. Petitioner has twice
entered the U.S. illegally, but has never been “admitted” to this
country. In any event, such a hearing is not “the sole and exclusive
procedure” for removability determinations, when Congress has
“otherwise specified.” For reinstatement, Congress did in fact
specify otherwise: in INA § 241(a)(5), it authorized the Attorney
General to reinstate prior removal orders based on the simple finding
that an alien entered the U.S. illegally after having been deported.4
3 The language is quoted in full supra at p. 6.
4 See supra note 1.

-- 8 of 20 --

9
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
In addition, the placement of the reinstatement of removal
statute in INA § 241, under the title “Detention and removal of
aliens ordered removed,” separate from INA § 240, which is entitled
“Removal proceedings,” indicates “a congressional intention to treat
reinstatement determinations differently from first-instance
determinations of removability.” Lattab, 384 F.3d at 18 (citing
Alexander v. Sandoval, 532 U.S. 275, 288-91 (2001)). As the Ninth
Circuit sitting en banc put it, it is unlikely that “Congress would
have bothered with the detailed provisions of INA § 241 if it
intended to give an alien subject to reinstatement of a prior removal
order exactly the same rights and procedural protections as an alien
facing removal for the first time.” Morales-Izquierdo, 486 F.3d at
491. It is, accordingly, fair for us to infer that the reinstatement
of removal statute was introduced as an alternative to the otherwise
applicable procedure mandated by INA § 240 for first instance
determinations of removability.
Our finding that INA § 240’s requirement of a comprehensive
hearing before an immigration judge does not apply to illegal
reentrants is consistent with the legislative history of the portion
of the IIRIRA dealing with reinstatement of a removal order. That
history evinces unequivocal congressional intent to rectify the
defects of the pre-IIRIRA procedures for reinstatement of removal
orders and “make the removal of illegal reentrants more expeditious.”
Lattab, 384 F.3d at 20; see also H.R. Rep. No. 104-469(I), at 13

-- 9 of 20 --

10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
(1996) (explaining that if “[a]liens who are ordered removed . . .
seek reentry they are subject to immediate removal under the prior
order” (emphasis added)); id. at 107 (characterizing the removal
procedures then in effect as “cumbersome and duplicative” and
expressing frustration because the “[r]emoval of aliens who enter the
United States illegally, even those who are ordered deported after a
full due process hearing, is an all-too-rare event”). Congress was
concerned with the inefficiencies of the previous scheme and sought
to modernize it by narrowing the range of defenses available to
recidivist illegal aliens and, most importantly, by eliminating any
duplication between removal and reinstatement proceedings. It is
clear that Congress enacted INA § 241(a)(5) to effect a “substantive
change” in the prior regime. See 62 Fed. Reg. 10312, 10326 (Mar. 6,
1997). Quite simply, “Congress replaced [the] reinstatement provision
with one that toed a harder line . . ..” Fernandez-Vargas v.
Gonzales, 548 U.S. 30, 34 (2006).
We cannot nullify the unambiguous intent of Congress to
streamline the reinstatement process and distinguish it from removal
proceedings under INA § 240. “There is a presumption against
construing a statute as containing superfluous or meaningless words
or giving it a construction that would render it ineffective.” United
States v. Blasius, 397 F.2d 203, 207 n.9 (2d Cir. 1968). Petitioner
urges us to do just that, i.e., render INA § 241(a)(5) superfluous,
by reinventing reinstatement of prior removal orders as a sub-

-- 10 of 20 --

11
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
category of removal proceedings subject to the hearing requirement
under INA § 240. The only way to bestow meaning on both provisions is
to conclude that Congress intended to exempt reinstatement of removal
from the procedural requirements of INA § 240.
Concluding that INA § 240 is inapplicable here does not end our
inquiry of “whether Congress has directly spoken to the precise
question at issue,” Chevron, 467 U.S. at 842, i.e., whether Congress
explicitly empowered the executive branch to design as summary a
procedure for reinstatement as the one set forth in 8 C.F.R. § 241.8.
Although the legislative history and the reinstatement of removal
statute itself clearly reflect general congressional intent that a
simplified procedure be employed for the swift removal of illegal
reentrants, the statutory scheme “neither explicates nor endorses any
particular procedures for reinstating removal orders.” Lattab, 384
F.3d at 19 (also noting that the legislative history “does not
address procedural questions with either clarity or specificity”).
Like most of the circuits that have decided the issue before us, we
conclude that INA §§ 240 and 241(a)(5) “are at best ambiguous
regarding the procedures applicable to aliens who reenter the United
States in violation of an existing removal order.” De Sandoval, 440
F.3d at 1281; see also Lorenzo, 508 F.3d at 1284; Lattab, 384 F.3d at
19. We, therefore, proceed with the second step of our analysis.
(2) Chevron Step Two. In examining the permissibility of 8
C.F.R. § 241.8, we are heedful of the Supreme Court’s direction that

-- 11 of 20 --

12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
the reasonable construction of a statutory provision be affirmed,
even if it is not the one “the court would have reached if the
question initially had arisen in a judicial proceeding.” Chevron, 467
U.S. at 843 n.11.
We would surely be hard-pressed to conclude that the Attorney
General’s implementation of the reinstatement of removal statute is
impermissible. First, the text of the reinstatement of removal
statute itself “assumes the use of summary, rather than judicial,
proceedings.” Lorenzo, 508 F.3d at 1283. The inquiry in a
reinstatement proceeding is limited to whether the “alien has
reentered the United States illegally after having been removed.” 8
U.S.C. § 1231(a)(5). The summary procedure set forth in 8 C.F.R. §
241.8 is, therefore, “quite appropriate when the only issues to be
determined are those establishing the agency’s right to proceed under
[INA] § 241(a)(5) –- the alien’s identity, the existence of a prior
removal order, and whether the alien has unlawfully reentered.”
Alvarez-Portillo v. Ashcroft, 280 F.3d 858, 867 (8th Cir. 2002). This
bare investigation “can be performed like any other ministerial
enforcement action” by an immigration officer, in lieu of an
immigration judge. Morales-Izquierdo, 486 F.3d at 491.
Furthermore, as we discuss below in parts II.C and II.D of the
opinion, illegal reentrants are now categorically declared ineligible
for any relief from removal and are barred from seeking any
collateral review of the reinstated order. This is a significant

-- 12 of 20 --

13
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
change from the previous regime and further simplifies the inquiry.
Compare 8 U.S.C. § 1231(a)(5) with 8 U.S.C. § 1252(f) (repealed
1996). “[T]he elimination of any exogenous defense to reinstatement
significantly narrows the range of issues to be adjudicated, thereby
limiting the value of additional procedures.” Lattab, 384 F.3d at 20.
The regulation is, therefore, “entirely consistent,” id, with
the IIRIRA’s stated purpose to “enable . . . the prompt exclusion or
removal of those who are not . . . entitled” to admission. See H.R.
Rep. No. 104-469(I), at 111. Deference to the Attorney General’s
interpretation is even more imperative “in the immigration context
where officials ‘exercise especially sensitive political functions
that implicate questions of foreign relations.’” INS v. Aguirre-
Aguirre, 526 U.S. 415, 425 (1999) (quoting INS v. Abudu, 485 U.S. 94,
110 (1988)). We, like our sister circuits,5 have “little difficulty”
in deferring to the government’s reasonable interpretation of INA §
241(a)(5). Lattab, 384 F.3d at 20.
Invoking the doctrine of constitutional avoidance, petitioner
invites us to find the regulation an impermissible interpretation of
the statute. The doctrine requires that when given a choice between
“two plausible statutory constructions,” we avoid adopting the one
5 With the exception of the Ninth Circuit, all other circuits that
have addressed the validity of 8 C.F.R. § 241.8 have resolved the issue on
the second step of Chevron, upholding the regulation as a permissible
construction of the reinstatement of removal statute. See Lorenzo, 508
F.3d at 1283; De Sandoval, 440 F.3d at 1283; Ochoa-Carillo, 437 F.3d at
846; Lattab, 384 F.3d at 20. The Sixth Circuit also resolved the issue on
the first step of Chevron in an unpublished summary order. See Tilley, 144
F. App’x at 540.

-- 13 of 20 --

14
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
that “would raise a multitude of constitutional problems.” Clark v.
Martinez, 543 U.S. 371, 380-81 (2005). Nevertheless, the doctrine is
unavailing to petitioner, because, as the Ninth Circuit held, once an
ambiguous statute has been interpreted by the agency in charge of its
implementation, we lack the “authority to re-construe the statute,
even to avoid potential constitutional problems.” Morales-Izquierdo,
486 F.3d at 493. Our role here is confined to deciding “whether the
agency’s interpretation reflects a plausible reading of the statutory
text.” Id. We hold that it does.
B. Due Process Challenges.
Petitioner’s constitutional challenges to the reinstatement
procedure, as laid down in 8 C.F.R. § 241.8 and as applied in his
case, likewise are without merit. Parties claiming denial of due
process in immigration cases must, in order to prevail, “allege some
cognizable prejudice fairly attributable to the challenged process.”
Lattab, 384 F.3d at 20; see also Zerrei v. Gonzales, 471 F.3d 342,
347 (2d Cir. 2006) (per curiam).
Petitioner fails to demonstrate how the alleged shortcomings
have prejudiced the outcome of his case. He “has admitted” before the
ICE and before us “all of the facts necessary to warrant
reinstatement” under INA § 241(a)(5), i.e., that he is an alien who
reentered the U.S. illegally after being previously deported. De
Sandoval, 440 F.3d at 1285. Thus, petitioner concededly “satisfie[d]
the statutory predicates for reinstatement.” Morales-Izquierdo, 486

-- 14 of 20 --

15
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
F.3d at 495. None of the additional procedural protections he
demands, including the presence of counsel, would have changed this.
We therefore need not determine the constitutional adequacy of the
existing procedures as to aliens who would dispute the factual bases
for reinstatement. Id.
The absence of the requisite prejudice further precludes
petitioner from challenging the constitutionality of 8 C.F.R. § 241.8
on its face. Our role is “to provide relief to claimants . . . who
have suffered . . . actual harm.” Lewis v. Casey, 518 U.S. 343, 349
(1996). We therefore reject petitioner’s due process claims.
We note, however, that despite the lack of a formal hearing, the
fast-track reinstatement process under 8 C.F.R. § 241.8 is not devoid
of procedural safeguards. First, “[t]he immigration officer must
obtain the prior order of . . . deportation relating to the alien.”
Id. § 241.8(a)(1). Second, if the alien’s identity is disputed, the
officer must compare the alien’s fingerprints with those of the
previously deported alien; “[i]n the absence of fingerprints in a
disputed case the alien shall not be removed pursuant to [the
reinstatement regulation].” Id. § 241.8(a)(2). Third, in making the
crucial finding that the alien reentered the U.S. unlawfully, the
officer must “consider all relevant evidence, including statements
made by the alien and any evidence in the alien’s possession.” Id. §
241.8(a)(3). If the alien claims lawful admission, “the officer shall
attempt to verify” the claim by checking the available ICE databases.

-- 15 of 20 --

16
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
Id. Last, even when the officer finds that the alien is subject to
removal, the alien must be notified in writing of this adverse
determination and be advised of the right to submit “a written or
oral statement contesting the determination,” which the officer must
then take into account. Id. § 241.8(b). “If the alien expresses a
fear of returning to the country designated in [the reinstatement]
order, the alien shall be immediately referred to an asylum officer
for an interview.” Id. § 241.8(e). The alien may also challenge the
reinstatement order in a court of appeals. 8 U.S.C. § 1252(a).
C. Collateral Review of the Underlying Deportation Order.
Petitioner asks us to vacate the reinstatement order also on the
ground that the underlying deportation proceeding deprived him of due
process. However, the reinstatement of removal statute expressly
prohibits us from giving petitioner a second bite at the apple. See 8
U.S.C. § 1231(a)(5) (“[T]he prior order of removal . . . is not
subject to being reopened or reviewed . . . .”); Fernandez-Vargas,
548 U.S. at 34-35. Petitioner had the right to challenge the validity
of the original deportation proceeding in a direct appeal to the BIA,
but he did not exercise it.
This outcome does not offend due process because, “regardless of
the process afforded in the underlying order,” reinstatement of the
prior deportation order does not alter petitioner’s legal condition.
Morales-Izquierdo, 486 F.3d at 497. The statute “does not penalize an
alien for the reentry (criminal and civil penalties do that).”

-- 16 of 20 --

17
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
Fernandez-Vargas, 548 U.S. at 44. It merely gives effect to a final
order issued after a formal hearing before an immigration judge. The
purpose is to “stop an indefinitely continuing violation that the
alien himself could end . . . by voluntarily leaving the country.”
Id. As the Ninth Circuit put it, “[w]hile aliens have a right to fair
procedures, they have no constitutional right to force the government
to re-adjudicate a final removal order by unlawfully reentering the
country.” Morales-Izquierdo, 486 F.3d at 498.
In seeking to set aside the reinstated deportation order,
petitioner relies on United States v. Mendoza-Lopez, 481 U.S. 828
(1987). However, that case recognized an alien’s right to attack
collaterally a prior deportation order only in the context of a
subsequent criminal proceeding for illegal reentry where the prior
deportation is an element of the crime, and where direct judicial
review of the original proceeding was not available due to procedural
defects. Id. at 838-39 & 839 n.17.
D. Waiver of Inadmissibility.
Finally, petitioner argues that, before the reinstatement order
could be issued, he was entitled to adjudication on the merits of his
applications for Waiver of Grounds of Excludability and for
Permission to Reapply for Admission, filed with the DHS on September
30, 2005, before the reinstatement order was issued.6 This Court,
6 In September 2005, petitioner’s wife filed a petition for Alien
Relative and petitioner applied for adjustment of his immigration status;
petitioner also filed petitions for (1) Waiver of Grounds of Excludability
and (2) Permission to Reapply for Admission. On April 5, 2006, former

-- 17 of 20 --

18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
however, recently rejected this argument in Tenesaca Delgado v.
Mukasey, 516 F.3d 65 (2d Cir. 2008). In Tenesaca Delgado, we
“accorde[d] Chevron deference to the BIA’s holding [in In re Torres-
Garcia, 23 I. & N. Dec. 866 (B.I.A. 2006)] that an applicant who is
inadmissible [as a result of having reentered this country illegally
after having been removed] is ineligible to apply for adjustment of
status from within the United States and is bound by the consent to
reapply provision, which requires that he seek permission to reapply
for admission from outside of the United States after ten years have
passed since his most recent departure from the United States.”
Tenesaca Delgado, 516 F.3d at 73.
We understand petitioner’s situation, yet we cannot disregard
the statutory text.7 An illegal reentrant “is not eligible and may not
apply for any relief” under the INA. 8 U.S.C. § 1231(a)(5) (emphasis
added).8 Petitioner was permanently inadmissible and could seek the
counsel for petitioner and his wife withdrew, on behalf of his clients,
the petitions for Alien Relative and Adjustment of Immigration Status,
yet, significantly, not the applications for Waiver of Grounds of
Excludability and Permission to Reapply for Admission. The latter two
petitions were not decided until May 29, 2007, after petitioner sought a
writ of mandamus against the DHS in the U.S. District Court for the
Southern District of New York.
7 See supra note 1.
8 8 C.F.R. § 241.8 does allow an alien subject to reinstatement to (1)
“express[] a fear of returning to the country designated in [the
reinstatement] order”; or (2) apply for adjustment of status under either
the Haitian Refugee Immigrant Fairness Act of 1998 or the Nicaraguan
Adjustment and Central American Relief Act. In both those instances,
reinstatement proceedings halt until there is a final determination on the
reasonable fear or adjustment of status claims. See 8 C.F.R. § 241.8(d)-
(e). Petitioner did indeed express fear of returning to Honduras while in
custody and was referred first to an asylum officer and then to an
immigration judge, who dismissed the claim in March 2007. Petitioner did

-- 18 of 20 --

19
1
2
3
4
5
6
7
8
consent of the Homeland Security Secretary to a new application for
admission only after having resided outside the U.S. for a minimum of
10 years. See 8 U.S.C. § 1182(a)(9)(C)(i)(II) & (ii). Petitioner
admittedly did not satisfy these requirements.
III. CONCLUSION
We have considered all of petitioner’s arguments and find them
to be without merit. Accordingly, we DENY the petition.
not seek review of the BIA’s ruling that affirmed the dismissal in July
2007. Thus, the reinstatement order may be properly enforced at the
present juncture.

-- 19 of 20 --

20
1

-- 20 of 20 --