Merardo Buquez v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-1645
MERARDO BUQUEZ,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A073-571-605)
Immigration Judge: Honorable Daniel Meisner
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 15, 2010
Before: RENDELL, FISHER and GARTH, Circuit Judges
(Opinion filed: September 20, 2010)
OPINION
PER CURIAM
Merardo Buquez petitions for review of an order reinstating a prior order of
deportation. For the reasons discussed below, we will deny the petition for review.
Buquez is a native and citizen of Peru. He came to the United States in 1993

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without inspection and was placed in deportation proceedings in 1995. In September
1996, an Immigration Judge (“IJ”) granted Buquez’s application for voluntary departure
until July 23, 1997, with an alternate order of deportation to Peru. Buquez had applied
for political asylum and withholding of removal, and the IJ denied these applications for
lack of prosecution. According to Buquez, he agreed to withdraw the applications in
exchange for an extended period of time before he was required to depart. The record
also reflects that Buquez believed his asylum claim had weakened since he left Peru.
On July 17, 1997, Buquez, through counsel, wrote a letter to the Immigration and
Naturalization Service (“INS”) and requested a three-month extension of time to depart
the United States. Buquez asserted that the political climate in Peru had changed and
that, as a result of these exceptional circumstances, he was making plans to travel to
another country to resettle. Buquez did not receive a response to his request, and he
departed the United States on his own on September 20, 1997, after his voluntary
departure date had expired. Not long thereafter, on November 21, 1997, Buquez
reentered the United States without inspection.
In 2008, Buquez, through counsel, filed a motion to reopen his immigration
proceedings, apparently to seek an employment-based adjustment of status. Contrary to
his July 1997 letter to the INS, Buquez stated in an affidavit that he remained in the
United States beyond his voluntary departure date because he had a severe eye infection
and that he returned to Peru as soon as he had completed his medical treatment. Buquez
stated that he had wanted to stay in Peru, but his daughter had suffered a head injury and

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1
The administrative record reflects that Buquez filed a motion to reopen, but the record
does not contain the motion or related decision. See A.R. at 15. An affidavit prepared by
Buquez in 2008 is included in the record, but the record does not contain any documents
related to his adjustment of status application. See A.R. at 12-13. It does not appear that
Buquez appealed the denial of the motion to reopen to the Board of Immigration Appeals.
2
Relying on Debeato v. Attorney General, 505 F.3d 231 (3d Cir. 2007), the
Government argues that we lack jurisdiction to review the reinstatement order because
Buquez does not raise a legal or constitutional error in the original removal proceedings.
We held in Debeato that we have jurisdiction “over legal and constitutional challenges to
final orders of removal, including those final orders that the Attorney General has
reinstated[.]” Id. at 235. Although Debeato involved a legal challenge to an original
removal order, Debeato does not preclude other legal and constitutional claims. See also
Dinnall v. Gonzales, 421 F.3d 247, 251 n.6 (3d Cir. 2005) (noting Court’s jurisdiction to
review petition challenging reinstatement statute on retroactivity grounds).
3
required medical treatment available in the United States. Buquez’s motion to reopen
was denied. 1 On February 5, 2009, the Department of Homeland Security issued an order
reinstating Buquez’s prior order of deportation. The order noted that Buquez had
departed the United States voluntarily pursuant to an order of deportation and had
illegally reentered the country. This petition for review followed.
Buquez contends that the application of the reinstatement statute, 8 U.S.C.
§ 1231(a)(5), is impermissibly retroactive because he was afforded voluntary departure
before the enactment of the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (“IIRIRA”). Buquez argues that a grant of voluntary departure before
IIRIRA differed in its benefits and consequences from a grant made after IIRIRA was
enacted and that reinstatement unfairly prejudices him because he reentered the country
with the understanding that he might be eligible for discretionary relief.2

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The Government correctly asserts that Avila-Macias v. Ashcroft, 328 F.3d 108 (3d
Cir. 2003), forecloses Buquez’s retroactivity argument. We held in Avila-Macias that
applying IIRIRA’s reinstatement provisions to an alien who was deported before
IIRIRA’s April 1, 1997, effective date, but who reentered illegally after that date, does
not have an impermissibly retroactive effect. Id. at 114. We explained that the
consequences the alien faced at the time he illegally reentered were the same
consequences he faced when his deportation order was reinstated. Id. Here, Buquez was
granted voluntary departure, with an alternate order of deportation, before IIRIRA
became effective and he illegally reentered after IIRIRA’s effective date. Like in Avila-
Macias, the consequences Buquez faced when he reentered were the same as when his
deportation order was reinstated.
Buquez argues that Avila-Macias is distinguishable because he departed pursuant
to a voluntary departure order and not a deportation order. The record does not support
this argument. The IJ’s order provides that Buquez was granted voluntary departure until
July 23, 1997 “with an alternate order of deportation to Peru.” A.R. at 2. Under the
regulations in effect at that time, an order of deportation was final and subject to
execution upon the date a grant of voluntary departure expired. 8 C.F.R. § 243.3(a)(1)
(1997) (repealed). An alien who voluntarily departed while an order of deportation was
outstanding was considered to have been deported. 8 C.F.R. § 243.5 (1997) (repealed).
An alien who departed before the expiration of the voluntary departure time granted in
connection with an alternate order of deportation was not considered to have been

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deported. Id. Because Buquez voluntarily departed on September 20, 1997, after the
voluntary departure period expired, he was considered to have been deported.
Buquez further argues that he did not depart under an order of deportation because
his belated departure was due to exceptional circumstances. In accordance with now-
repealed 8 U.S.C. § 1252b(e)(2)(A), the IJ notified Buquez:
You have been granted voluntary departure. . . . Remaining in the United
States beyond the authorized date other than because of exceptional
circumstances beyond your control will result in your being ineligible for
certain forms of relief . . . for five (5) years from the date of scheduled
departure or the date of unlawful reentry, respectively.
A.R. at 3. “Exceptional circumstances” were defined under the former statute as
circumstances beyond the control of the alien “such as serious illness of the alien or death
of an immediate relative of the alien, but not including less compelling circumstances.” 8
U.S.C. § 1252b(f) (repealed).
As noted above, shortly before Buquez’s voluntary departure date, he requested an
extension of time to leave the United States due to the exceptional circumstance that the
political climate in Peru had changed and he was making plans to travel to another
country. Buquez, however, concedes in his brief that such requests were rarely granted
and that he did not receive a response to his request. Moreover, Buquez no longer
contends that he departed after his voluntary departure date due to a changed political
climate in Peru. He now contends that he was unable to timely depart because he had a
serious eye infection. Buquez did not assert that an eye infection was the reason for his
belated departure until 2008, when he sought to reopen his proceedings. The record does

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3
Other courts of appeals also have upheld the constitutionality of 8 C.F.R. § 241.8
where the alien admittedly satisfied the statutory predicates for reinstatement. See, e.g.,
Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir. 2008).
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not include medical records or any other objective evidence establishing that Buquez had
an eye infection requiring a delayed departure. Buquez has not shown that his belated
departure was due to exceptional circumstances or that he did not depart under an order of
deportation.
Buquez also contends that his due process rights were violated because he was not
afforded a hearing before an Immigration Judge. In Morales-Izquierdo v. Gonzales, 486
F.3d 484, 495-96 (9th Cir. 2007) (en banc), the court of appeals rejected a due process
challenge to 8 C.F.R. § 241.8, the regulation allowing an immigration officer, as opposed
to an Immigration Judge, to order reinstatement. Although not deciding the question in
all cases, the court noted that the alien did not contest any of the statutory predicates for
reinstatement, such as the fact that he was subject to a prior removal order. Id. The court
further stated that the fact that the alien may have departed voluntarily was of no
consequence because any mode of departure while subject to an order of removal
constitutes a removal for reinstatement purposes. Id. at 496.3
In order to reinstate a prior order of removal, the statute requires that an alien has
reentered the United States illegally and that he reentered after having been removed or
having departed voluntarily under an order of removal. 8 U.S.C. § 1231(a)(5). Unlike in
Morales-Izquierdo, Buquez challenges a predicate fact to reinstatement – that he

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The Government’s motion for summary denial of the petition for review, which was
referred to us for disposition, is denied.
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departed under an order of deportation. As discussed above, however, the administrative
record reflects that he departed under an order of deportation. Buquez thus suffered no
prejudice by not having access to an Immigration Judge, as he does not have a colorable
argument that he did not depart under an order of deportation.
Accordingly, we will deny the petition for review.4

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