451 F. App'x 611
8th Cir.2012Background
- Gomez-Olvera was born in Mexico in 1973 and became a lawful permanent resident in 1990.
- In 1995 he was convicted of unlawful sex with a minor and petty theft, leading to an immigration judge's order of deportation for two CIMTs.
- He did not seek review of the 1995 deportation order and was deported to Mexico in 1995.
- He reentered the United States illegally and was arrested on February 7, 2011.
- A DHS officer notified his lawyer of the reinstatement process; the lawyer did not appear, and Gomez-Olvera declined to use the phone or contact the Mexican Consulate.
- DHS notified him of the intent to reinstate the 1995 order; Gomez-Olvera argued the 1995 order was legally erroneous and claimed due process violations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the reinstatement order was proper under 8 U.S.C. § 1231(a)(5). | Gomez-Olvera challenged the reinstatement of the 1995 order as legally erroneous. | The reinstatement statute forecloses challenges to the underlying order; only identity, prior removal, and reentry matter. | Reinstatement proper; underlying order cannot be challenged. |
| Whether Gomez-Olvera was prejudiced by any lack of due process in the reinstatement proceeding. | He was denied an attorney and access to his immigration file, impairing defense. | No prejudice shown; lack of counsel or file access would not have changed the outcome since the three determinations were unchallenged. | No due process prejudice; petition denied on prejudice grounds. |
Key Cases Cited
- Ochoa-Carrillo v. Gonzales, 437 F.3d 842 (8th Cir. 2006) (jurisdiction to review reinstatement order under 8 U.S.C. § 1252(a))
- Alvarez-Portillo v. Ashcroft, 280 F.3d 858 (8th Cir. 2002) (reinstatement does not permit attacking the validity of a prior deportation)
- Flores v. Ashcroft, 354 F.3d 727 (8th Cir. 2003) (not prejudiced by lack of a new hearing when no challenge to reinstatement determinations)
- Lopez v. Heinauer, 332 F.3d 507 (8th Cir. 2003) (prejudice requirement in due process challenges)
- Briones-Sanchez v. Heinauer, 319 F.3d 324 (8th Cir. 2003) (actual prejudice required for due process claims)
- Molina Jerez v. Holder, 625 F.3d 1058 (8th Cir. 2010) (three determinations for reinstatement; identity, prior order, reentry)