Torres-Tristan v. Holder

656 F.3d 653, 2011 U.S. App. LEXIS 18204, 2011 WL 3849636
CourtCourt of Appeals for the Seventh Circuit
DecidedSeptember 1, 2011
Docket10-1411, 10-2532, 10-3333
StatusPublished
Cited by49 cases

This text of 656 F.3d 653 (Torres-Tristan v. Holder) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Torres-Tristan v. Holder, 656 F.3d 653, 2011 U.S. App. LEXIS 18204, 2011 WL 3849636 (7th Cir. 2011).

Opinion

HAMILTON, Circuit Judge.

We consider three petitions for review by a Mexican citizen who has been ordered removed from the United States. The first petition, No. 10-1411, seeks direct review of an order by the Department of Homeland Security (DHS) reinstating an earlier order of removal. We have jurisdiction over that petition, but the order was clearly proper. We deny that petition *655 on its merits. The second and third petitions seek to create a novel route to obtain, apparently for the first time in the circuit courts of appeals, judicial review of orders by U.S. Citizenship and Immigration Services (USCIS) that denied petitioner the “U Visa” he sought to prolong his unlawful stay in the United States. U Visas, which take their name from 8 U.S.C. § 1101(a)(15)(U), grant temporary lawful resident status to alien victims of crime who assist in an investigation or prosecution. We conclude that we lack jurisdiction over those petitions and dismiss them.

I. Factual and Procedural Background

Petitioner Juan Gabriel Torres-Tristan first entered the United States in 1993 as a minor. He became involved with the Latin Kings gang, and in 2000, he was serving an Illinois sentence for robbery and aggravated battery. The U.S. Immigration and Naturalization Service ordered him removed because he was in the United States illegally. The order was executed on July 20, 2001 when petitioner was removed to Mexico. Because he had been convicted of an aggravated felony, petitioner was prohibited from re-entering the United States without first seeking permission from the Attorney General waiving his inadmissible status. See 8 U.S.C. § 1182(a)(9) (A)(ii) - (iii).

Despite this prohibition, petitioner reentered the United States without permission just three months later and returned to the Chicago area. A little over a year later, on December 7, 2002, and relevant to his U Visa petition, Torres-Tristan was assaulted by a group of people he did not know. According to his 2010 U Visa petition, he was attacked while walking to a restaurant for dinner with a friend. The attackers beat him with bottles and bats and stole his vehicle. Petitioner was knocked unconscious and suffered injuries to his face and hands. In the days after the incident, he attended a police line-up but could not identify any of the attackers.

For seven more years, petitioner continued to live in the Chicago area with his fiancée and daughter, without any official attention to his illegal status. In January 2010, however, DHS officials arrested him and reinstated his prior order of removal from 2000. About six weeks later, while he remained in DHS custody, Torres-Tristan filed a petition with USCIS seeking a U Visa, which would grant him temporary lawful status based on the 2002 attack and his cooperation with the police at that time. Because the 2000 removal order made petitioner legally inadmissible to the United States and thus ineligible for a U Visa, he also applied for a waiver of his inadmissible status under 8 U.S.C. § 1182(d)(3) & (d)(14). USCIS denied both his U Visa petition and his waiver application, and then his later motion for reconsideration. Torres-Tristan has petitioned to review all of these actions.

II. Reinstatement of the 2000 Removal Order

We turn first to the petition over which we have jurisdiction. Appeal No. 10-1411 seeks judicial review of the DHS’s 2010 reinstatement of the removal order from 2000 pursuant to 8 U.S.C. § 1231(a)(5) and 8 C.F.R. § 241.8. An alien subject to removal under a reinstated order does not have a right to a hearing before an immigration judge. See 8 U.S.C. § 1231(a)(5). 1 *656 Rather, an immigration officer issues a “Notice of Intent/Decision to Reinstate Prior Order,” which the alien may contest by making a written or oral statement to the officer at the time of issuance. 8 C.F.R. § 241.8(b) (“If the alien wishes to make such a statement, the officer shall allow the alien to do so and shall consider whether the alien’s statement warrants reconsideration of the determination.”). Under the statute, an alien who has not made a statement or whose statement has been rejected “shall be removed under the prior order at any time after the reentry” of the order of removal. 8 U.S.C. § 1231(a)(5).

In this case, petitioner Torres-Tristan did not contest the reinstatement order at the time it was issued. DHS took him into custody. 2 Torres-Tristan filed a timely petition for review of the reinstatement order pursuant to 8 U.S.C. § 1252. See also 8 U.S.C. § 1228(b)(3) (requiring a 14-day delay in executing removal order to allow opportunity to apply for judicial review).

Judicial review of a reinstatement order extends only to whether the reinstatement order was properly entered. See Gomez-Chavez v. Perryman, 308 F.3d 796, 801 (7th Cir.2002). We do not look behind the reinstatement to entertain challenges to the earlier, underlying removal order. Id. Petitioner Torres-Tristan concedes that he is the proper subject of the reinstatement order. He does not contest that he is removable for his criminal convictions, and he makes no meaningful argument on appeal to challenge the reinstatement. We deny the petition for review of the reinstatement order.

III. Denial of a U Visa and Waiver of Inadmissibility

On March 9, 2010, six weeks after the reinstatement of his prior removal order, and while he was in DHS custody, Torres-Tristan submitted to USCIS a petition for interim relief under 8 U.S.C. § 1101(a)(15)(U), the U nonimmigrant status provision. Congress created the U nonimmigrant classification or U Visa in 2000 for victims of serious crimes and some of their family members. See Pub.L. No. 106-386, 114 Stat. 1464 (2000); Fonseca-Sanchez v. Gonzales, 484 F.3d 439, 442 n. 4 (7th Cir.2007).

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656 F.3d 653, 2011 U.S. App. LEXIS 18204, 2011 WL 3849636, Counsel Stack Legal Research, https://law.counselstack.com/opinion/torres-tristan-v-holder-ca7-2011.