Silvestre Hernandez- Martinez v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SILVESTRE HERNANDEZ-
MARTINEZ,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 13-71892
Agency No. A200-948-156
MEMORANDUM*
On Petition for Review of an Order of the
Department of Homeland Security
Submitted December 9, 2015**
Before: WALLACE, RAWLINSON, and IKUTA, Circuit Judges.
Silvestre Hernandez-Martinez, a native and citizen of Mexico, petitions for
review of the Department of Homeland Security’s (“DHS”) August 8, 2012, order
reinstating his 2011 order of removal. We have jurisdiction under 8 U.S.C. § 1252.
We review de novo constitutional claims, but our review is otherwise “limited to
FILED
DEC 15 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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confirming the agency’s compliance with the reinstatement regulations.” Garcia
de Rincon v. DHS, 539 F.3d 1133, 1136-37 (9th Cir. 2008). We deny the petition
for review.
The DHS did not err in issuing Hernandez-Martinez’ reinstatement order,
where the record shows that he was an alien, he was subject to a prior order of
removal in 2011, and he illegally reentered subsequent to that order. See id. at
1137 (our jurisdiction is limited to reviewing “three discrete inquiries an
immigration officer must make in order to reinstate a removal order: (1) whether
the petitioner is an alien; (2) whether the petitioner was subject to a prior removal
order, and (3) whether the petitioner re-entered illegally”); 8 U.S.C. § 1231(a)(5)
(if the DHS “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”).
To the extent that Hernandez-Martinez raises a procedural due process
challenge regarding an unchecked box on his Form I-871, he has not established
prejudice. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (to prevail on a
due process challenge, an alien must show error and prejudice).
Hernandez-Martinez’ remaining contentions are unavailing.
PETITION FOR REVIEW DENIED.
13-71892 2

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