Israel Salazar v. JOHN ASHCROFT, Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
NO. 01-3342
__________
ISRAEL SALAZAR,
Petitioner
v.
JOHN ASHCROFT,
Attorney General of the United States,
Respondent
___________
On Petition for Review of an Order of the
Immigration and Naturalization Service
(Agency No. A78 431 383)
__________
Submitted Under Third Circuit LAR 34.1(a)
June 14, 2002
Before: ROTH, RENDELL and ROSENN, Circuit Judges,
(Filed June 27, 2002 )
__________
OPINION
__________
RENDELL, Circuit Judge.
Israel Salazar petitions for review of an order of the Immigration and
Naturalization Service (INS) that reinstated a previous removal order. He argues that the
reinstatement of removal without a hearing violated his due process rights. We do not
reach the merits of Salazar’s due process claim because he has not demonstrated that he
suffered actual prejudice. On this basis, we will deny the petition for review and affirm
the removal order.
We have jurisdiction under INA 242(a)(1); 8 U.S.C. 1252. While we may not
review the prior order of removal, see 8 U.S.C. 1231(a)(5), we have jurisdiction to
review the reinstatement of that order. See Ojeda-Terrazas v. Ashcroft, 290 F.3d 292
(5th Cir. 2002); Alvarez-Portillo v. Ashcroft, 280 F.3d 858 (8th Cir. 2002); Velasquez-
Gabriel v. Crocetti, 263 F.3d 102, 105 (4th Cir. 2001); Bejjani v. INS, 271 F.3d 670, 674
(6th Cir. 2001); Castro-Cortez v. INS, 239 F.3d 1037, 1044 (9th Cir. 2001). Our review
of Salazar’s constitutional claims is de novo. E.g., Chong v. INS, 264 F.3d 378, 386 (3d
Cir. 2001).
The INS reinstated Salazar’s removal order pursuant to a provision of the Illegal
Immigration Reform and Immigrant Responsibility Act (IIRIRA) that 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.

-- 1 of 2 --

INA 241(a)(5), 8 U.S.C. 1231(a)(5). This statutory provision does not prescribe a
process, but INS regulations provide that an alien in reinstatement proceedings "has no
right to a hearing before an immigration judge." 8 C.F.R. 241.8(a).
Clearly "[a]liens facing removal are entitled to due process." Chong, 264 F.3d at
386. But it is an open question whether the INS regulation providing for reinstatement
of a prior removal order without a hearing could violate due process rights. Compare
Castro-Cortez v. INS, 239 F.3d at 1040 (stating in dicta that "we seriously doubt that the
government’s new reinstatement procedure comports with the Due Process Clause"),
with Alvarenga-Villalobos v. Ashcroft, 271 F.3d 1169, 1174 (9th Cir. 2001) (concluding
that "[t]o preclude a second bite at the apple after an illegal reentry does not offend due
process"). We do not, however, reach this question here.
To prevail on a claim that there was a due process violation, Salazar must
demonstrate that he was prejudiced. See, e.g., Ojeda-Terrazas, 290 F.3d at *7; Campos-
Sanchez v. INS, 164 F.3d 448, 450 (9th Cir. 1998). The immigration officer must make
three determinations to establish whether an alien is subject to reinstatement of a prior
removal order: "[w]hether the alien has been subject to a prior order of removal," "[t]he
identity of the alien," and "[w]hether the alien unlawfully reentered the United States." 8
C.F.R. 241.8(a). If these requirements are met, "the alien shall be removed under the
previous order of exclusion, deportation, or removal." 8 C.F.R. 241.8(c) (emphasis
added). Salazar does not contest any of these predicate findings.
Salazar does argue that denial of a hearing affected the outcome because an
Immigration Judge could allow discretionary relief and review the denial of Salazar’s
application to adjust his status based on his marriage to a United States citizen. But 8
U.S.C. 1231(a)(5) specifically provides that someone who has reentered illegally "is
not eligible and may not apply for any relief under this chapter," which includes
adjustment of status. Accordingly, the argument Salazar desires to make at a hearing
would not impact the outcome. Absent a showing that the lack of hearing would cause
actual prejudice, Salazar cannot prevail on his due process claim.
Accordingly, we will DENY the petition for review and AFFIRM the removal
order entered August 22, 2001. _________________________
TO THE CLERK OF COURT:
Please file the foregoing Not Precedential Opinion.
/s/Marjorie O. Rendell
________________________
Circuit Judge
Dated:

-- 2 of 2 --