Jose Martinez v. Jeh Johnson
740 F.3d 1040
5th Cir.2014Background
- Martinez, a Mexican citizen, challenges reinstatement of a 1993 removal order and contends the original order was unconstitutional and that he legally reentered.
- Martinez first entered the U.S. in 1983; subsequent 1990 weapon possession and 1993 burglary convictions preceded an INS deportation proceeding.
- In 1993, he received an order to show cause served English; no translator or certified notice, and the hearing occurred with Martinez in custody.
- The IJ found deportability and issued a deportation warrant; Martinez was deported three days later.
- In 1997 he reentered border-crossing, obtained a new INS card under Jose A Martinez; INS later learned of prior deportation in 2000.
- Martinez repeatedly reentered illegally after deportations; ICE reinstated the 1993 removal order in May 2013 and Martinez protested in June.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review the original removal order | Martinez argues due-process violation merits review. | Government says no jurisdiction to review original order; only constitutional claims subject to review if exhausted. | No jurisdiction to hear due-process challenge to the original order. |
| legality of reinstatement given illegal reentry | Martinez contends legal reentry negates reinstatement. | Martinez did not obtain Attorney General permission to reapply; reinstatement proper. | Martinez illegally reentered; reinstatement upheld under 8 U.S.C. §1252. |
Key Cases Cited
- Ramirez-Molina v. Ziglar, 436 F.3d 508 (5th Cir. 2006) (exhaustion or gross miscarriage required for collateral attacks on removal)
- Anderson v. Napolitano, 611 F.3d 275 (5th Cir. 2010) (reinstatement under illegitimate reentry; passport stamp not proof of lawful reentry)