Gustavo Escobedo-Fernandez v. Eric Holder, Jr.

504 F. App'x 568

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 9, 2013
• Docket: 09-71781, 09-72860, 09-73854
• Status: Unpublished

Opinion

MEMORANDUM **

Petitioner Gustavo Escobedo-Fernandez (Escobedo) seeks review of the reinstatement by the Department of Homeland Security (DHS) of his 1997 order of deportation. He also challenges the dismissal by the Board of Immigration Appeals (BIA) of his two motions to reopen and his motion to reconsider.

1. This court lacks jurisdiction to review the DHS’s reinstatement of Escobe-do’s 1997 order of deportation because he did not appeal that order to the BIA. See Garcia de Rincon v. Dep’t of Homeland Sec., 539 F.3d 1133, 1138 (9th Cir.2008) (recognizing that other jurisdictional limitations within 8 U.S.C. § 1252 remain applicable); see also 8 U.S.C. § 1252(d)(1) (requiring administrative exhaustion).

2. The BIA properly dismissed Esco-bedo’s motions to reopen and his motion to reconsider for lack of jurisdiction. Because the DHS reinstated Escobedo’s prior order of deportation, he was statutorily barred from seeking review of the underlying order of deportation. See 8 U.S.C. § 1231(a)(5) (“If the Attorney General finds that an alien has reentered the United States illegally after having been removed ... 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 ...”); see also Padilla v. Ashcroft, 334 F.3d 921, 924 (9th Cir.2003) (“[T]he reinstatement statute ... bars review of [underlying deportation] orders] either directly or collaterally.”) (citations omitted).

PETITION DENIED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.