Manuel Roberto Avila, a native and citizen of Peru, through counsel, petitions this Court for review of an order issued by the Department of Homeland Security (DHS) on March 6, 2008, reinstating an August 12, 1997, order of removal, pursuant to 8 U.S.C. § 1281(a)(5).
Avilа argues the order of reinstatement violated his due process rights because (1) he did not have a meaningful opportunity to contest the reinstatement decision; and (2) there was no underlying removal order, or, in the alternative, any underlying removal order was invalid because it was the product of due process violations and constituted an impermissible “negative consequence” of his failure to post a voluntary departure bond. Avila also contends he is eligible to adjust his status under 8 U.S.C. § 12650).
After review of the record and the parties’ briefs, and having the benefit of oral argument, we dismiss Avila’s petition in part and deny in part.
I. BACKGROUND
On June 27, 1997, the Immigrаtion and Naturalization Service (INS) of Arlington, Virginia, served a man claiming to be Roman Moreno-Tapia with a notice to appear, charging him with removability for being an alien in the United States without having been admitted or paroled, in violation of 8 U.S.C. § 1182(a)(6)(A)(i). On August 12, 1997, the Immigration Judge issued an order granting Avila voluntary departure “under INS safeguards ... upon posting a bond in the amount of $1,500 by 18 August 97 with an alternate order of removal to Mexico.” Avila declined to pay the voluntary departure bond and was transported to Mexico on September 22,1997.
Avila subsequently reentered the United States and married his wife on March 28, 2001. She applied on his behalf for аdjustment of status that year. The application was denied but, as of February 5, 2008, had not yet been made final. On February 5, 2008, Avila was approached by Bureau of Immigration and Customs Enforcement (BICE) agents at his home. He аdmitted in a sworn statement he previously used the name Roman Moreno-Ta-pia and last entered the United States in November 2000. He also admitted he had been removed in 1997 and had not subsequently applied for permission to reenter the country.
On March 6, 2008, the Government filed a “Notice of Intent/Decision to Reinstate Prior Order.” The notice stated that Avila was subject to an order of removal entered on August 12, 1997, that he was removed pursuant to that order on September 22, 1997, and that he illegally reentered the United States in November of 2000. On the same date, DHS issued an order reinstating his prior order of removal. The instant petition for review followed.
II. JURISDICTION
We review
de novo
our own subject matter jurisdiction.
Sanchez Jimenez v. U.S. Att’y Gen.,
We instructed the parties to brief the following three jurisdictional questions: (1) whether the order of reinstatement is a “final order of removal” subject to judicial review; (2) whether this Court has jurisdiction over Avilа’s petition for review, given the underlying removal proceedings oc *1284 curred in Arlington, Virginia, but the order of reinstatement was issued in Miami, Florida; and (3) whether this Court has jurisdiction to review the underlying removal order. Although neither рarty disputes this Court's jurisdiction under the first two issues, we review the jurisdictional questions for the first time in this Court. With respect to the third issue, the Government argues we lack jurisdiction to review the August 12, 1997, removal order.
1. Order of Reinstatement
We have jurisdiction to review “final orderfs] of removal” under the Immigration and Nationality Act. 8 U.S.C. § 1252(a)(1). Section 241(a)(5) of the INA governs the reinstatement of removal orders, and states “the prior order of removal ... is not subject to being reopened or reviewed” and the individual subject to the order “is not eligible and may not apply for any relief under this chapter.” 8 U.S.C. § 1231(a)(5). This statute does not provide for administrative review, so a petitioner subject tо a reinstatement order has nothing left to appeal. See id. Both parties contend § 1252(a)(1) authorizes review of the reinstatement order, and we agree. An order of reinstatement is a final order of removal under § 1252(a)(1).
2. Jurisdiction over Avila’s Petition for Review
Every circuit to discuss whether § 1252(b)(2) circumscribes subject matter jurisdiction has concluded § 1252(b)(2) is a nonjurisdictional venue provision.
See Moreno-Bravo v. Gonzales,
Section 1252(b)(2), which is entitled “Venue and forms,” provides as follows:
The petition for review shall be filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings. The record and briefs do not have to be printed. The court of appeals shall review the proceeding on a typewritten record and on typewritten briefs.
8 U.S.C. § 1252(b)(2). First, § 1252(b)(2) does not refer to “jurisdiction” or “judicial review.”
See Moreno-Bravo,
*1285 In accordance with the language of the statute and sister circuit authority, we conclude § 1252(b)(2) is a nonjurisdictional venue provision. Further, the Government concedes venue is proper in this Court because the order of reinstatement was issued in Miami, Florida. Accordingly, we have jurisdiction to review Avila’s order of reinstatement under § 1252(a)(1), and venue is proper in this Court under § 1252(b)(2).
3. Underlying Removal Order
This Court has jurisdiction tо review a final order of removal only if the alien has first exhausted his administrative remedies, 8 U.S.C. § 1252(d)(1);
Amaya-Artunduaga v. U.S. Att’y Gen.,
On petition for review, Avila raises procedural due process claims and alleges no “negative consequences” could attach to his failure to post the voluntary departure bond. Avila failed to challenge his underlying removal proceedings before the BIA or this Court. Because Avila failed to exhaust his administrative remedies or seek timely review of his 1997 deportation order, we lаck jurisdiction to review the underlying validity of that order. We therefore do not address petitioner’s argument that the underlying removal order was the product of due process violations or that it constituted an imрermissible “negative consequence” of his failure to post a voluntary departure bond.
III. DUE PROCESS
We review
de novo
constitutional due process claims.
Ali v. U.S. Att’y Gen.,
In establishing whether a prior removal order may be reinstated under the regulations implementing § 1231(a)(5), an immigration officer must determine whether (1) the alien has been subject to a prior order of removal, (2) the alien is in fact the same аlien who was previously removed, and (3) the alien unlawfully reentered the United States. 8 C.F.R. § 241.8(a)(l)-(3).
In
De Sandoval v. U.S. Att’y Gen.,
Although Avila contends there was no underlying removal order, he admitted in sworn testimony and in his brief that he was subject to a prior removal order in 1997. In this respect, § 1231(a)(5) includes voluntary departure orders as well as removal orders, as it authorizes reinstatement when the alien has previously been removed or when he has voluntarily departed under an order of removal. 8 U.S.C. § 1231(a)(5). Because Avila was subject to a рrior removal order, the first element of § 241.8(a) is satisfied. Avila does not dispute the second or third element under § 241.8(a) and has therefore abandoned these issues.
De Santamaria v. U.S. Att’y Gen.,
IV. RELIEF UNDER 8 U.S.C. § 1255(i)
Certain aliens physically present in the United States may apply to the Attorney General for adjustment of status to that of an alien lawfully admitted for permanent residence. 8 U.S.C. § 1255(i)(l). We held in
De Sandoval
that “§ 1231(a)(5) bars illegal reentrants from seeking an adjustment of status under § 1255(i).”
V. CONCLUSION
For the reasons stated above, Avila has not shown any due process violation with respect to the order of reinstatement, and we lack jurisdiction to review the validity of the underlying removal order. We also conclude Avila is not entitled to relief under § 1255(i).
PETITION DISMISSED IN PART, DENIED IN PART.