Maciel-Cortez v. Ashcroft, (10th Cir. 2005)

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UNITED

STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JOSE ANTONIO MACIEL-CORTEZ,

Petitioner,

v.

JOHN ASHCROFT, Attorney General,

Respondent.

No. 04-9502

(No. A78-906-699)

(Petition for Review)

ORDER AND JUDGMENT(*)

Before EBEL, BALDOCK, and

KELLY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties' request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

Petitioner Jose Antonio Maciel-Cortez, a native and citizen of Mexico,

seeks review of an order of the Bureau of Immigration and Customs Enforcement

(BICE) reinstating a prior order for his removal. We conclude that petitioner's

legal and constitutional challenges to the reinstatement order lack merit and,

accordingly, deny his petition for review.(1)

On January 5, 2000, petitioner entered this country at an inspection point

and applied for admission claiming to be a U.S. citizen. When pressed for proof,

he admitted that this claim was false. He gave a statement indicating that he had

resided in this country without authorization for five years, had married a U.S.

citizen in December 1997, and was just returning from a visit to his parents in

Mexico when he was detained at the inspection point. He was found inadmissible

on account of his false representation of citizenship, 8 U.S.C. 1182(a)(6)(C)(ii),

leading to issuance of an expedited order of removal under 8 U.S.C. 1225(b)(1)

and his deportation all on the same day.

Just nine days later, on January 14, 2000, petitioner illegally reentered the

country without inspection. In March 2002, he applied to adjust his status to that

of a permanent resident under 8 U.S.C. 1255(i) based on the U.S. citizenship of

his wife. When it came to light that he had been removed shortly before his latest

entry into the country, he was arrested and detained pending reinstatement of the

prior order of removal pursuant to 8 U.S.C. 1231(a)(5). Petitioner declined to

make any statement contesting the reinstatement, which has since culminated in

his removal to Mexico.

Instead, he brought the habeas proceeding underlying the instant petition

for review. The petition does not challenge the basis for the reinstatement order.

Rather, its focus is on the use of the reinstatement process to deny petitioner an

opportunity to seek an adjustment of status. Under § 1231(a)(5), following the

reinstatement of a removal order, "the alien is not eligible and may not apply for

any relief under this chapter." As this court recently explained, the § 1231(a)(5)

bar is sweeping, precluding relief under any provision of the Immigration and

Nationality Act "regardless of whether [the] applications for relief were filed

before or after the reinstatement decision is made." Berrum-Garcia v. Comfort,

390 F.3d 1158, 1163 (10th Cir. 2004). Petitioner contends the reinstatement of

his removal order and consequent nullification of his application for adjustment

of status was an incorrect application of § 1231(a)(5), involved an improperly

retroactive use of the statute, and violated his due process rights.

The first contention, that the BICE misapplied § 1231(a)(5) by reinstating a

the removal order and thereby preempting a pending application for adjustment of

status, is foreclosed by recent precedent. In Berrum-Garcia, we held that

§ 1231(a)(5) bars an illegally reentering alien from adjusting his status, even if

the alien applies for the adjustment before reinstatement of the removal order.

Berrum-Garcia, 390 F.3d at 1163-64. Petitioner's associated argument that

joining a "Form I-212" request for waiver of inadmissibility under 8 C.F.R. § 212.2 to the application for adjustment of status defuses the

§ 1231(a)(5) bar

was also rejected in that case. See Berrum-Garcia, 390 F.3d at 1164-65.

Petitioner's retroactivity objection founders on chronology. Section

1231(a)(5) was enacted as part of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009, and

became effective April 1, 1997. Fernandez-Vargas v. Ashcroft, No. 03-9610,

2005 WL 61485, at *1 n.3 (10th Cir. Jan. 12, 2005) (citing IIRIRA § 309(a)). Its

application to petitioner raises no retroactivity problem for at least two reasons.

First of all, the triggering event for § 1231(a)(5) ­ petitioner's illegal

reentry in

January 2000 ­ occurred after the statute became effective and, thus, there is no

retroactive effect involved. See, e.g., Warner v. Ashcroft, 381 F.3d

5534, 538

(6th Cir. 2004); Perez-Gonzalez v. Ashcroft, 379 F.3d 783, 787 (9th Cir.

2004);

Lopez v. Heinauer, 332 F.3d 507, 512 (8th Cir. 2003); Avila-Macias v.

Ashcroft,

328 F.3d 108, 114 (3d Cir. 2003). Second, even if he had reentered earlier, the

fact that he did not marry and file for adjustment of status until after the statute's

effective date would vitiate his retroactivity objection. See

Fernandez-Vargas,

2005 WL 61485, at *8.

Given that § 1231(a)(5) was correctly applied and raised no retroactivity

problems, petitioner's constitutional objection is reduced to the claim that his loss

of potential I-212 waiver and § 1255(i) adjustment-of-status benefits through the

proper reinstatement of a removal order denied him due process of law. This

argument is also foreclosed by recent precedent. See Berrum-Garcia,

390 F.3d at

1165- 68.

The petition for review is DENIED. The mandate shall issue forthwith.

Entered for the Court

Bobby R. Baldock

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. This order and judgment is not binding

precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

1. Petitioner initially challenged the

reinstatement order by filing a habeas

petition in district court. Recognizing that the proper avenue for review was,

rather, by way of petition for review, the district court appropriately transferred

the matter to this court. See Berrum-Garcia v. Comfort, 390 F.3d 1158,

1162-63

(10th Cir. 2004).

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