Lemos v. Holder
636 F.3d 365
| 7th Cir. | 2011Background
- Tapia Lemos, a Mexican citizen, was order_removed in 1997 for obstruction of justice and hit-and-run conduct.
- He reentered the United States without inspection, was caught in June 2010, and removed again.
- He secretly returned after the 2010 removal, and was caught again in October 2010; DHS reinstated the 1997 removal order under 8 U.S.C. § 1231(a)(5) and proposed a third removal.
- On December 9, 2010, Tapia requested a stay of removal and rescission of the 1997 order, arguing the underlying convictions were not aggravated felonies; counsel urged new removal proceedings based on post-1997 case law.
- DHS denied the stay and kept the reinstated order; Tapia filed a petition for review in the Seventh Circuit.
- The court questioned its jurisdiction: petition timing under §1252(b)(1) and the reviewability of the January 18, 2011 decision denying reopening; ultimately dismissed for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of petition under §1252(b)(1) | Time runs from order receipt, not face date. | Time runs from the face-date of the final removal order. | Petition untimely; jurisdiction dismissed. |
| Reviewability of the January 18, 2011 denial of reopening | Denial constitutes reviewable denial of reopening. | Decisions to commence proceedings or execute removal are not reviewable; not a reopening denial. | Not reviewable; petition dismissed for lack of jurisdiction. |
Key Cases Cited
- Nowak v. INS, 94 F.3d 390 (7th Cir.1996) (time runs from face date of order)
- Villegas de la Paz v. Holder, 614 F.3d 605 (6th Cir.2010) (alternative receipt-based timing discussions)
- Stone v. INS, 544 U.S. 386 (1995) (jurisdictional time limits analogous to appeals)
- Bowles v. Russell, 551 U.S. 205 (2007) (jurisdictional time limits are not subject to extension)
- Kucana v. Holder, 130 S. Ct. 827 (2010) (reviewability of agency decisions under §1252(g))
- Reno v. AADC, 525 U.S. 471 (1999) (statutory limits on review of agency actions)
- Gomez-Chavez v. Perryman, 308 F.3d 796 (7th Cir.2002) (reviewability of reinstated orders under §1252)
- Fonseca-Sanchez v. Gonzales, 484 F.3d 439 (7th Cir.2007) (reopening and agency discretion considerations)