March 26, 2019
Petition for Review of a Final Removal Order of the U.S.
Department of Homeland Security. A073 360 777
BAUER, ROVNER, and BRENNAN, Circuit Judges.
ROVNER, CIRCUIT JUDGE.
2007, Victor Martin Villa Serrano ("Villa")
reentered the United States after having been removed in
2005. When he came to the attention of the government in
2018, a deportation officer for U.S. Immigration and Customs
Enforcement ("ICE") determined that Villa had
illegally reentered the United States and was subject to
reinstatement of the prior removal order. Villa raises a few
legal challenges to that conclusion, primarily contending
that there is no lawful prior order of removal because the
original "Notice to Appear" was legally deficient
and the immigration judge therefore lacked jurisdiction to
enter the order of removal. Because we lack jurisdiction to
review the underlying order of removal, we dismiss the
petition for review.
a native and citizen of Mexico, originally entered the United
States in March 1988 without inspection or admission by an
immigration officer. He adjusted his status to that of a
lawful permanent resident in August 1995. Approximately nine
years later, he was convicted in state court of possession of
cocaine, and sentenced to a year in prison. On January 12,
2005, the Department of Homeland Security ("DHS")
initiated removal proceedings against Villa by serving him
with a Notice to Appear ("Notice"). The Notice
charged that he was subject to removal under 8 U.S.C. §
1227(a)(2)(A)(iii) because, after admission, he had been
convicted of an aggravated felony as defined in 8 U.S.C.
§ 1101(a)(43)(B). The Notice directed him to appear
before an immigration judge and listed an address for the
hearing. But on the pre-printed lines for "date"
and "time," the Notice provided only "on a
date to be set," and "at a time to be set."
Admin. R. at 23-25.
does not dispute that the Immigration Court later served on
him a Notice of Hearing that specified the date and time of
his first hearing. On February 9, 2005, he appeared at the
removal hearing and the immigration judge entered an order of
removal. Villa waived his right to appeal that decision and a
few weeks later, he was removed to Mexico. The record
contains no corroboration of when, how or where he reentered
the United States, but according to Villa, he returned
sometime in 2007, crossing the border on foot at an
unspecified location. After reentering, he did not come to
the attention of immigration authorities until 2018. On July
31 of that year, DHS served him with a Notice of
Intent/Decision to Reinstate Prior Order of Removal
("Decision to Reinstate"). Citing 8 U.S.C. §
1231(a)(5) and 8 C.F.R. § 241.8 as authority, the
Decision to Reinstate apprised Villa that DHS intended to
reinstate the February 9, 2005 removal order ("2005
Order") because Villa had illegally reentered the United
States on an unknown date at an unknown place after
previously having been removed. The Decision to Reinstate
advised Villa that he could contest the determination that he
was removable under the prior order by making an oral or
written statement but that he was not entitled to a hearing
before an immigration judge. Thereafter, Villa filed this
petition for review.
Petition for Review, Villa contends that the 2005 Order was
void because it was entered ultra vires, and
therefore may not be reinstated under 8 U.S.C. §
1231(a)(5). He also argues that the 2005 removal proceedings
under 8 U.S.C. § 1229a were never properly initiated and
that subject matter jurisdiction failed to vest with the
immigration judge because his Notice to Appear did not
contain all of the required information. He bases his
arguments largely on the Supreme Court's recent decision
in Pereira v. Sessions, 138 S.Ct. 2105 (2018). The
government responds that this court lacks jurisdiction to
consider any challenges to an underlying removal order in a
reinstatement case, and that, in any event, Villa failed to
timely challenge the 2005 Order and failed to exhaust
administrative remedies. By the government's count, there
are at least three bars to this court considering the
validity of the 2005 Order. The government also asserts that,
if Villa were able to overcome those bars to review, his
claim would fail on the merits.
the authority and the obligation in every case to assess our
own jurisdiction, and we undertake this review de novo.
Muratoski v. Holder, 622 F.3d 824, 829 (7th Cir. 2010);
Gattem v. Gonzales, 412 F.3d 758, 762 (7th Cir.
2005). The statute providing for reinstatement of prior
orders of removal specifies:
If the Attorney General finds that an alien has reentered the
United States illegally after having been removed or having
departed voluntarily, under an order of removal, the
prior order of removal is reinstated from its original
date and is not subject to being reopened or
reviewed, the alien is not eligible and may not apply
for any relief under this chapter, and the alien shall be
removed under the prior order at any time after the reentry.
8 U.S.C. § 1231(a)(5) (emphasis added). Under the plain
language of this provision, we lack jurisdiction to review
the underlying prior order of removal, in this case, the 2005
Order. Cordova-Soto v. Holder, 732 F.3d 789, 793
(7th Cir. 2013); Torres-Tristan v. Holder, 656 F.3d
653, 656 (7th Cir. 2011). See also Fernandez-Vargas v.
Gonzales, 548 U.S. 30, 34-35 (2006) (the current version
of the reinstatement statute provides for the broadest use of
reinstatement, applying to all illegal reentrants, and
explicitly insulating removal orders from review, while also
generally foreclosing discretionary relief from the terms of
the reinstatement order); Mendoza v. Sessions, 891
F.3d 672, 679 (7th Cir. 2018) (same).
however, have jurisdiction to consider the reinstatement
order itself. Torres-Tristan, 656 F.3d at 656; 8
U.S.C. § 1252(a). "Judicial review of a
reinstatement order extends only to whether the reinstatement
order was properly entered." Torres-Tristan,
656 F.3d at 656. Reinstatement procedures are limited in
scope. Gomez-Chavez v. Perryman,308 F.3d 796, 801
(7th Cir. 2002). In ...