Gustavo Escobedo-Fernandez v. ERIC H. HOLDER, Jr., Attorney General

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GUSTAVO ESCOBEDO-FERNANDEZ,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 09-71781
Agency No. A030-794-842
MEMORANDUM*
GUSTAVO ESCOBEDO-FERNANDEZ,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 09-72860
Agency No. A030-794-842
GUSTAVO ESCOBEDO-FERNANDEZ,
Petitioner,
v.
No. 09-73854
Agency No. A030-794-842
FILED
JAN 09 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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** The Honorable Frederic Block, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
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ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 6, 2012
San Francisco, California
Before: TROTT and RAWLINSON, Circuit Judges, and BLOCK, Senior District
Judge.**
Petitioner Gustavo Escobedo-Fernandez (Escobedo) seeks review of the
reinstatement by the Department of Homeland Security (DHS) of his 1997 order of
deportation. He also challenges the dismissal by the Board of Immigration Appeals
(BIA) of his two motions to reopen and his motion to reconsider.
1. This court lacks jurisdiction to review the DHS’s reinstatement of
Escobedo’s 1997 order of deportation because he did not appeal that order to the
BIA. See Garcia de Rincon v. Dep’t of Homeland Sec., 539 F.3d 1133, 1138 (9th
Cir. 2008) (recognizing that other jurisdictional limitations within 8 U.S.C. § 1252

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remain applicable); see also 8 U.S.C. § 1252(d)(1) (requiring administrative
exhaustion).
2. The BIA properly dismissed Escobedo’s motions to reopen and his
motion to reconsider for lack of jurisdiction. Because the DHS reinstated
Escobedo’s prior order of deportation, he was statutorily barred from seeking
review of the underlying order of deportation. See 8 U.S.C. § 1231(a)(5) (“If the
Attorney General finds that an alien has reentered the United States illegally after
having been removed . . . 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 . .
.”); see also Padilla v. Ashcroft, 334 F.3d 921, 924 (9th Cir. 2003) (“[T]he
reinstatement statute . . . bars review of [underlying deportation] order[s] either
directly or collaterally.”) (citations omitted).
PETITION DENIED.

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