Villegas De La Paz v. Holder
2010 U.S. App. LEXIS 23182
6th Cir.2010Background
- Villegas de la Paz, a Mexican citizen, entered the U.S. with questionable documents and was ordered excluded in March 1996 after an immigration judge proceeding.
- She illegally re-entered the United States around 1996 after departing; years later, in July 2008, a traffic stop in Tennessee led to a DHS 287(g) fingerprint check revealing the 1996 exclusion order.
- A DHS officer issued a Notice of Intent/Decision to Reinstate Prior Order; Villegas signed contest but DHS proceeded to reinstate the 1996 removal order the next day, July 10, 2008.
- DHS withheld the reinstatement order from Villegas and her counsel for about seven months, delaying any formal notification or opportunity to respond.
- Villegas petitioned for review of the reinstatement order in March 2009; DHS asserted lack of jurisdiction due to timeliness, but the court held timely and proceeded to merits.
- The court ultimately denied Villegas’s petition, upholding the reinstatement order and rejecting her due process challenges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court has jurisdiction to review a reinstatement order. | Villegas asserts jurisdiction exists for review of reinstatement orders. | Government contends jurisdiction is lacking due to timeliness and agency action. | Court has jurisdiction; DHS withholding order cannot divest review. |
| Whether Villegas was subject to a prior removal order. | Villegas contends no prior order existed | DHS produced documents showing a March 11, 1996 order of exclusion/removal. | Sufficient evidence shows a prior removal order existed. |
| Whether DHS complied with reinstatement procedures and whether any procedural lapse prejudiced Villegas. | Noncompliance with § 241.8(b) prejudiced her rights | Procedural defects were not prejudicial given the existence of the prior order and other criteria were met. | Procedural lapse was not prejudicial; no relief granted. |
| Whether Villegas’ due process challenges to reinstatement and underlying removal order have merit. | Argues denial of counsel, biased official, and record deficiencies violated due process | Any prejudice from due process claims was not shown; review limited by statute. | Claims insufficient to show prejudice; rejected. |
| Whether § 1252(a)(2)(D) re-vests appellate jurisdiction over constitutional or legal questions raised in reinstatement proceedings, allowing review of the underlying order. | REAL ID Act preserves review of constitutional/legal questions | Prior decisions limit review of underlying order; some circuits restricted review | § 1252(a)(2)(D) re-vests jurisdiction for constitutional/legal questions in reinstatement context. |
Key Cases Cited
- Madrigal v. Holder, 572 F.3d 239 (6th Cir.2009) (government cannot cut off appeal by removing claimant prior to ruling)
- Warner v. Ashcroft, 381 F.3d 534 (6th Cir.2004) (treatment of reinstatement like removal for review purposes)
- Ojeda-Terrazas v. Ashcroft, 290 F.3d 292 (5th Cir.2002) (review framework for reinstatement orders)
- Castro-Cortez v. INS, 239 F.3d 1037 (9th Cir.2001) (reinstatement review aligned with removal orders)
- Ramirez-Molina v. Ziglar, 436 F.3d 508 (5th Cir.2006) (jurisdictional scope in reinstatement context; exhaustion considerations)
- Khan v. Holder, 608 F.3d 325 (7th Cir.2010) (interpretation of 1252(a)(2)(D) in reinstatement context)
- Garcia de Rincon v. Dep't of Homeland Sec., 539 F.3d 1133 (9th Cir.2008) (circuit alignment on 1252(a)(2)(D) authority)
- Debeato v. Att'y Gen., 505 F.3d 231 (3d Cir.2007) (exercising jurisdiction over legal questions in reinstatement)