David Pizana-Aguirre v. Jeff B. Sessions
676 F. App'x 630
| 9th Cir. | 2017Background
- Petitioner David Pizana-Aguirre, a Mexican national, had a 1995 deportation order and subsequently reentered the U.S. without inspection.
- DHS issued an order in 2013 reinstating the 1995 removal order under 8 U.S.C. § 1231(a)(5).
- At the original 1995 deportation hearing, Pizana-Aguirre admitted a 1992 controlled-substance conviction; the IJ accepted that admission.
- Pizana-Aguirre argued the original proceedings were a "gross miscarriage of justice" because the IJ did not discuss his eligibility for relief and thus sought collateral review of the prior order.
- He also argued entitlement to adjust status based on reliance on Perez-Gonzalez and raised related waiver/settlement-class arguments.
- The Ninth Circuit limited review to whether reinstatement procedures were followed and whether the three statutory prerequisites for reinstatement were met.
Issues
| Issue | Pizana-Aguirre's Argument | DHS's Argument | Held |
|---|---|---|---|
| Whether DHS properly reinstated prior removal order | He is not subject to reinstatement because original proceedings were fundamentally flawed | Reinstatement valid if alien, prior removal, and illegal reentry are established | Reinstatement proper: all three criteria satisfied |
| Whether original deportation constituted a "gross miscarriage of justice" | IJ’s failure to discuss relief made original order defective | IJ reasonably relied on petitioner’s admissions and law to deny relief | No gross miscarriage; collateral attack fails |
| Whether petitioner could rely on Perez-Gonzalez to adjust status | He relied on Perez-Gonzalez to file for adjustment/waiver | Perez-Gonzalez decision postdated his application; he was on notice after later developments | Cannot have relied on Perez-Gonzalez; adjustment claim fails |
| Whether petitioner is part of Duran Gonzalez settlement class | He claims class membership based on inadmissibility/waiver issues | His reentry date and inadmissibility category exclude him from class | Not a class member; settlement does not apply |
Key Cases Cited
- Garcia de Rincon v. DHS, 539 F.3d 1133 (9th Cir. 2008) (limits appellate review to agency compliance with reinstatement regulations)
- Cinapian v. Holder, 567 F.3d 1067 (9th Cir. 2009) (admissions before IJ constitute judicial admissions relieving government of burden)
- Perez-Mejia v. Holder, 663 F.3d 403 (9th Cir. 2011) (admitted facts establishing removability are binding if accepted by IJ)
- Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004) (addressed adjustment-of-status issues later argued by petitioner)
- Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (applicant cannot rely on a case decided after filing)
- Carrillo de Palacios v. Holder, 708 F.3d 1066 (9th Cir. 2013) (applicants are on notice of later unfavorable precedents affecting their claims)
PETITION FOR REVIEW DENIED.