945 F.3d 1054
8th Cir.2019Background
- Lara‑Nieto, a Mexican national, unlawfully entered the U.S. in 1993 and was convicted in Texas (2003) of “Assault‑Family Violence.”
- DHS served a Notice of Intent that mistakenly referenced INA § 1101(a)(43)(B) (drug‑trafficking), while the Final Administrative Removal Order referenced § 1101(a)(43)(F) (crime of violence); he was removed July 15, 2003.
- Lara‑Nieto later illegally reentered the U.S.; DHS reinstated the 2003 removal order on April 27, 2018 under 8 U.S.C. § 1231(a)(5).
- He applied for protection in a reasonable‑fear interview (May 8, 2018) asserting fear based on hearing impairment and perceived wealth/extortion risk; the asylum officer and the IJ found no reasonable fear of persecution or torture.
- While his petition for review of reinstatement was pending, Lara‑Nieto filed two district court suits seeking review and to compel DHS to adjudicate a motion to reopen; the district court dismissed them for lack of jurisdiction.
- The Eighth Circuit consolidated the appeals, denied the petition for review of reinstatement, and affirmed the district court dismissals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court had jurisdiction over complaints attacking reinstatement | Lara‑Nieto: district court could review because reinstatement here is a “gross miscarriage of justice” | DHS: jurisdiction for reinstatement challenges lies exclusively in court of appeals under 8 U.S.C. § 1252(a)(5) | Dismissal affirmed: appeals court has exclusive jurisdiction; district court lacked subject‑matter jurisdiction |
| Whether DHS properly reinstated the prior removal order under § 1231(a)(5) | Lara‑Nieto: underlying 2003 Removal Order was legally infirm (wrong statutory reference; failure to identify state statute) so reinstatement was improper | DHS: reinstatement review is limited to identity, prior order, and illegal reentry; those elements satisfied by clear and convincing evidence | Reinstatement affirmed: Court lacked jurisdiction to review validity of underlying order; substantial evidence supported reinstatement |
| Whether collateral challenge to underlying removal order is preserved under § 1252(a)(2)(D) | Lara‑Nieto: may collaterally challenge underlying order as unconstitutional or legally defective | DHS: reinstatement statute bars reopening/review of prior order; collateral challenges (if available) are time‑limited | Court did not reach merits; noted § 1252(a)(2)(D) may allow limited collateral review but 30‑day deadline had long passed |
| Eligibility for withholding of removal and CAT protection | Lara‑Nieto: fears extortion/violence returning to Mexico and discrimination due to hearing impairment | DHS/IJ: record lacks evidence of persecution or government acquiescence to torture; generalized country‑condition fears insufficient | Denial of withholding and CAT relief affirmed: no clear probability of persecution nor likelihood of torture by or with government acquiescence |
Key Cases Cited
- Cardoza Salazar v. Barr, 932 F.3d 704 (8th Cir. 2019) (procedural rule on finality of reasonable‑fear appeals)
- Molina Jerez v. Holder, 625 F.3d 1058 (8th Cir. 2010) (court of appeals has exclusive jurisdiction to review reinstatement)
- Ochoa‑Carrillo v. Gonzales, 446 F.3d 781 (8th Cir. 2006) (sole and exclusive means to review § 1231(a)(5) reinstatement is petition for review in court of appeals)
- Perez‑Garcia v. Lynch, 829 F.3d 937 (8th Cir. 2016) (standard and elements for § 1231(a)(5) reinstatement review)
- Mendez‑Gomez v. Barr, 928 F.3d 728 (8th Cir. 2019) (jurisdiction in reinstatement challenges limited to identity, prior order, and unlawful reentry)
- Mouawad v. Gonzales, 485 F.3d 405 (8th Cir. 2007) (standard for withholding of removal: clear probability of persecution on protected ground)
- Cambara‑Cambara v. Lynch, 837 F.3d 822 (8th Cir. 2016) (CAT requires torture by or with consent/acquiescence of public official)
- Malonga v. Holder, 621 F.3d 757 (8th Cir. 2010) (generalized country conditions do not ordinarily support persecution claims)