Allan Altamirano Trejo v. Jeffrey Rosen

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 5, 2021
• Docket: 19-72462
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 5 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ALLAN ALTAMIRANO TREJO, No. 19-72462

Petitioner, Agency No. A095-620-585

v. MEMORANDUM* JEFFREY A. ROSEN, Acting Attorney General, Respondent.

On Petition for Review from Orders of the Department of Homeland Security and the Executive Office for Immigration Review

Submitted November 16, 2020** Pasadena, California

Before: RAWLINSON and HUNSAKER, Circuit Judges, and ENGLAND,*** District Judge.

Allan Altamirano Trejo (“Altamirano”), a citizen and native of Mexico,

petitions for review of an August 30, 2019, order of the Department of Homeland

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Morrison C. England, Jr., United States Senior District Judge for the Eastern District of California, sitting by designation. Security (“DHS”) reinstating an expedited removal order previously issued in

2004. Altamirano further seeks review of a subsequent October 24, 2019,

decision, made by an immigration judge (“IJ”), which concurred in the asylum

officer’s negative reasonable fear determination. We have jurisdiction under 8

U.S.C. § 1252, and we deny the petition.

1. DHS was not tasked with reviewing the legality of the 2004 removal

order when it considered reinstatement in 2019. Morales-Izquierdo v. Gonzales,

486 F.3d 484, 497–98 (9th Cir. 2007). Instead, DHS’s role was limited to the

ministerial task of assessing whether “(1) [Altamirano was] an alien, (2) who was

subject to a prior removal order, and (3) who illegally reentered the United States.”

Id. at 495 (citing 8 C.F.R. § 241.8). Given that narrow scope, we lack jurisdiction

to consider Altamirano’s substantive challenges to the 2004 removal order. 8

U.S.C. § 1252(a)(2)(A).

2. Nor is Altamirano’s claim that he was legally paroled back into the

United States after being deported in 2004 persuasive. Aside from the self-serving

declarations provided by Altamirano and his family, there is no evidence in the

record to corroborate his claim. Since a grant of parole would have been

documented, and no such documentation was produced here, the declarations

provided by Altamirano are insufficient to establish he legally returned from

Mexico. See United States v. Arango, 670 F.3d 988, 994 (9th Cir. 2012).

2 3. Even assuming Altamirano had been paroled to return pending

adjudication of his adjustment of status application, that request was denied on

August 30, 2004, at which point his parole would have expired. See 8 C.F.R. §

212.5(e)(1). Altamirano nonetheless remained in the United States for the next

fifteen years. By overstaying his parole in such an egregious manner, Altamirano

effectuated an illegal reentry. See United States v. Pina-Jaime, 332 F.3d 609, 612

(9th Cir. 2003).

4. Altamirano also brings a due process claim, alleging that the agency

failed to properly notify him of the IJ’s October 24, 2019, negative reasonable fear

review hearing. However, his claim is contradicted by the record, which shows

that he was served with notice on both October 15 and 18, 2019. Moreover, by the

time of the hearing, Altamirano had affirmatively elected through counsel not to

advance a reasonable fear claim, instead choosing to rely solely on his challenge to

the reinstatement order. A subsequent negative reasonable fear hearing is not the

venue to assert a reasonable fear claim in the first instance. Dep’t of Just., Immigr.

Ct. Prac. Manual, ch. 7.4(e)(iv)(E) (explaining that the IJ reviews only the “asylum

officer’s decision”).

5. The temporary stay of removal remains in place until issuance of the

mandate. The motion for a stay of removal is otherwise denied.

PETITION DENIED.