Cordova-Soto v. Holder
659 F.3d 1029
| 10th Cir. | 2011Background
- Cordova-Soto is a Mexican native who entered the United States as a child and became a lawful permanent resident in 1991 at age 13.
- In October 2005 DHS initiated removal proceedings based on three grounds: aggravated felon, two CIMTs, and a controlled-substance offense; she had three Kansas convictions including a 2005 methamphetamine possession felony.
- She signed a Stipulation waiving counsel, admitted all NTA allegations, conceded removability, waived relief and appeal rights, and acknowledged possible ten-year reentry prohibitions and potential imprisonment for illegal reentry.
- The IJ ordered removal on November 8, 2005; she was removed to Mexico on November 10, 2005.
- In March 2010 she was located in Wichita; in September 2010 DHS reinstated the removal order under 8 U.S.C. § 1231(a)(5) after finding illegal reentry.
- Cordova-Soto petitioned for review challenging the underlying 2005 order and the reinstatement; the court held it lacked jurisdiction to review the 2005 order but had direct review authority over the reinstatement order and denied the petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court has jurisdiction to review the 2005 removal order | Cordova-Soto argues §1252(a)(2)(D) preserves review of legal claims. | The government asserts the 30-day jurisdictional bar in §1252(b)(1) defeats review of the 2005 order. | No jurisdiction to review the 2005 order. |
| Whether the reinstatement under §1231(a)(5) was properly applied | Cordova-Soto contends her November 2005 entry was procedural regularity, making reentry lawful. | DHS properly found illegal reentry and reinstated the prior removal order. | DHS's reinstatement proper; order reinstated. |
| Whether Quilantan affects interpretation of 'reentered illegally' in §1231(a)(5) | Cordova-Soto relies on Quilantan to equate procedurally regular entry with lawful admission. | Quilantan addresses 'admitted' in §1255(a), not §1231(a)(5); does not control here. | Quilantan inapplicable to §1231(a)(5) interpretation; entry could be illegal reentry even if procedurally regular. |
| Whether reentry before consent to reapply voids eligibility for reinstatement | Cordova-Soto argues her entry was not illegal reentry due to procedural regularity. | Law recognizes illegal reentry when reentry occurs without consent and prior inadmissibility applies. | Cordova-Soto's reentry was illegal; reinstatement proper. |
Key Cases Cited
- Lorenzo v. Mukasey, 508 F.3d 1278 (10th Cir. 2007) (illegal reentry triggers reinstatement under §1231(a)(5))
- Nahatchevska v. Ashcroft, 317 F.3d 1226 (10th Cir. 2003) (timeliness is a jurisdictional requirement for petitions for review)
- Anderson v. Napolitano, 611 F.3d 275 (5th Cir. 2010) (reentry without consent generally unlawful; consistency with §1182(a)(9))
- Morales-Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir. 2007) (reentry by previously removed alien without consent unlawful under §1182(a)(9))