Jose Perez-Garcia v. Loretta E. Lynch
829 F.3d 937
8th Cir.2016Background
- Perez-Garcia, a Mexican national, received voluntary departure on Nov. 19, 1998, with a $5,000 bond and deadline to depart by March 19, 1999; failure to depart would convert to an alternate removal order.
- He was apprehended in May 2000 and removed to Mexico pursuant to the November 1998 removal order (the government treats the voluntary-depart-failure as an effective removal order).
- Perez-Garcia subsequently reentered the United States, was detained on July 30, 2014, and DHS served a reinstatement of the 1998 removal order under 8 U.S.C. § 1231(a)(5).
- Perez-Garcia contends he did timely depart on March 19, 1999, and submitted an affidavit and a photocopy of a Mexican F.M.E. (entry/exit form) asserting compliance; DHS found the evidence unauthenticated and not persuasive.
- Perez-Garcia filed a petition for review of the reinstatement and a motion to reopen/rescind the reinstatement; DHS denied the motion and the petitions were consolidated. The court denied both petitions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of reinstatement under § 1231(a)(5) | Perez-Garcia: no prior removal order because he timely departed under voluntary departure | DHS: alternative removal became effective when he failed to prove compliance; identity, prior order, and illegal reentry established | Reinstatement supported by substantial evidence; petition denied |
| Due process in reinstatement proceeding | Perez-Garcia: lacked meaningful process and would have shown timely departure at a hearing | DHS: Perez-Garcia declined to contest Form I-871 and offered no evidence at reinstatement; no prejudice shown | No due process violation; petitioner failed to show prejudice |
| Arbitrary selection of reinstatement vs. new removal hearing | Perez-Garcia: arbitrary because he might be eligible for relief in full removal proceedings | DHS: reinstatement procedures are valid; 8 U.S.C. § 1252(g) limits review of initiation/decision to commence proceedings | Court accepts DHS procedure and declines to review selection; claim foreclosed |
| Denial of motion to reopen based on evidence of timely departure | Perez-Garcia: affidavit and F.M.E. suffice to reopen and rescind reinstatement; at least a factual dispute requires remand | DHS: evidence unauthenticated, affidavit not credible given prior opportunities to claim departure; denial reviewed for abuse of discretion | DHS did not abuse discretion; denial affirmed |
Key Cases Cited
- Ochoa-Carrillo v. Gonzales, 437 F.3d 842 (8th Cir. 2006) (circuit precedent on review of reinstated removal orders and 8 C.F.R. § 241.8)
- Molina Jerez v. Holder, 625 F.3d 1058 (8th Cir. 2010) (scope of review limited to identity, prior order, and unlawful reentry)
- Menendez-Donis v. Ashcroft, 360 F.3d 915 (8th Cir. 2004) (standard for overturning agency factual findings)
- Briones-Sanchez v. Heinauer, 319 F.3d 324 (8th Cir. 2003) (prejudice requirement for due process claims in deportation context)
- United States v. Torres-Sanchez, 68 F.3d 227 (8th Cir. 1995) (actual prejudice concept cited for due process analysis)
- Gitau v. Mukasey, 520 F.3d 906 (8th Cir. 2008) (abuse-of-discretion review for motions to reopen)
- Xiu Ling Chen v. Holder, 751 F.3d 876 (8th Cir. 2014) (authentication and reliability of foreign documents in immigration proceedings)