FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RANULFO MARTINEZ-MERINO, 

No. 05-74776 Petitioner,

Agency No.

v.  A78-198-090

MICHAEL B. MUKASEY,* Attorney ORDER AND General, OPINION Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

August 8, 2007—Anchorage, Alaska

Filed May 5, 2008

Before: J. Clifford Wallace, John T. Noonan, and

Richard A. Paez, Circuit Judges.

Opinion by Judge Noonan

*Michael B. Mukasey is substituted for his predecessor, Peter D. Keisler, as Attorney General of the United States, pursuant to Fed. R. App. P.

43(c)(2). 

4915
COUNSEL

Phillip J. Eide, Anchorage, Alaska, for the petitioner. 

Edward J. Duffy, Washington, D.C., for the respondent.

ORDER

The opinion and concurrence filed October 10, 2007, are

WITHDRAWN. 

OPINION

NOONAN, Circuit Judge: 

In this converted petition for review of the order reinstating

his removal from the country, Ranulfo Martinez-Merino

(Martinez) challenges the validity of his underlying removal

proceedings. Holding that Martinez has not successfully

alleged the deprivation of any constitutional or statutory right

MARTINEZ-MERINO v. KEISLER 4917
to be free from the restraint imposed by the reinstatement

order, we deny his petition. 

ALLEGATIONS AND PROCEEDINGS

In the absence of any evidentiary hearing in, or findings by,

the district court, we summarize only the allegations of the

petitioner and the procedural record. 

Martinez is a native and citizen of Mexico and a member

of an indigenous minority group known as Triqui. His primary language is Triqui. He has a limited knowledge of Spanish. 

Martinez entered the United States without inspection in

early 2002. He had left Mexico because his brother had been

killed by a guerrilla group that the government could not control, and he was afraid that the group would kill him. He was

arrested by the Immigration and Naturalization Service (the

INS). Granted voluntary departure, he departed for Mexico,

but returned to the United States in August 2002. 

In December 2002, he was again apprehended by the INS.

He was given a form in Spanish headed “Notificación De

Derechos.” The form advised him of his right to a hearing

before an Immigration Judge; of his right to communicate

with counsel; of the opportunity to obtain from the INS a list

of asociaciones juridícas which would assist him gratuitously

or at little cost; of his right to communicate with the Mexican

consul; and of his right to use a telephone to call a lawyer or

the consul. 

A second form “Solicitud De Resolucion” gave him three

options: (1) to ask for a hearing before an IJ so that he could

remain in the United States; (2) to state that he would be in

danger if returned to Mexico, a statement that the form said

would lead to a hearing before an IJ; or (3) to admit that he

was illegally in the United States and did not believe that he

4918 MARTINEZ-MERINO v. KEISLER
would be in danger if returned to his country. Under the third

option he also renounced his right to a hearing. 

On December 9, 2002, Martinez signed the second form

checking off the third option. On December 9, 2002, he also

signed a form in English entitled “Stipulated Request for

Removal Order And Waiver of Hearing.” He waived his right

to apply for relief from removal and designated Mexico as his

country of choice for removal. This form also declared that he

had signed it voluntarily, knowingly, and intelligently. Also

signing the stipulation were an immigration officer and the

district counsel for the INS. On December 11, 2002, an IJ

ordered Martinez’s removal, and he was removed on December 17, 2002. 

In April 2003, Martinez again entered the United States. He

was apprehended by the INS on December 5, 2003. On the

same day, he signed a form identifying himself as subject to

the deportation order of December 11, 2002 and acknowledging his illegal reentry on April 15, 2003. The form instructed

him that he could contest this determination by a written or

oral statement to an immigration judge. The form was translated into Spanish for him. He checked a box indicating that

he did not wish to make a statement, and he signed the form.

A “supervising special agent” then entered “Decision, Order,

and Officer’s Certification” determining that Martinez was

subject to removal. 

Three days later, Martinez filed a petition with the district

court for a writ of habeas corpus. On February 20, 2004, the

district court dismissed the petitioner’s challenge to the

removal order of 2002. The district court transferred to this

court that part of the petition challenging the reinstatement

made in 2003. The district court ruled that Martinez could be

removed from the United States. He was removed in early

2004. 

On November 15, 2004, this court granted Martinez’s

unopposed motion to remand the case for proceedings in the

MARTINEZ-MERINO v. KEISLER 4919
light of Arreola-Arreola v. Ashcroft, 383 F.3d 956 (9th Cir.

2004), overruled by Morales-Izquierdo v. Gonzales, 486 F.3d

484, 496 (9th Cir. 2007) (en banc). 

On March 18, 2005, Martinez filed an amended petition for

a writ of habeas corpus. The district court scheduled a hearing

for September 6-7, 2005. The district court directed that Martinez be paroled into the community to aid in the preparation

of his case. Before the scheduled hearing could be held, however, the Real ID Act became law. Pursuant to

§ 106(a)(1)(B)(5), codified at 8 U.S.C. § 1252(a)(5), which

provided that “the sole and exclusive means for judicial

review of an order of removal” is the appropriate court of

appeals, the district court again transferred the case to this

court. 

ANALYSIS

Martinez argues that the effect of the transfer to this court

is to deny him any opportunity to present his case. His case

depends on evidence, and our court does not take evidence.

The transfer, in effect, suspends the writ of habeas corpus

because there is no way for his case to be heard. 

While this appeal was pending, the en banc court overruled

Arreola-Arreola and held that 8 U.S.C. § 1231(a)(5) precluded an alien petitioning for review of the reinstatement of

an order of deportation from seeking to reopen the underlying

removal order. Morales-Izquierdo, 486 F.3d at 496-97. Morales was seeking to get behind the reinstatement order to attack

the removal order on the ground that he had not received

notice of the removal hearing. The en banc court ruled that

“the reinstatement statute specifically precludes Morales from

seeking to reopen the previous removal order based on defective service or any other grounds. . . . Because none of the

grounds Morales raises would have been a proper basis for

relief during the reinstatement process, he suffered no preju4920 MARTINEZ-MERINO v. KEISLER
dice by being denied access to an official who could adjudicate facts that might support these claims.” Id. at 496. 

The court further reasoned that § 1231(a)(5) “provided sufficient procedural safeguards to withstand a facial challenge

for facial insufficiency,” but acknowledged that individual

petitioners might raise procedural defects in particular cases

and considered the merits of Morales’ claims. Id. at 495-96.

The court concluded that even Morales’ constitutional challenge to his underlying removal claim was not enough to

invalidate the reinstatement order because “[r]einstatement of

a prior removal order—regardless of the process afforded in

the underlying order—does not offend due process because

reinstatement of a prior order does not change the alien’s

rights or remedies.” Id. at 497. Importantly, the reinstatement

order “imposes no civil or criminal penalties, creates no new

obstacles to attacking the validity of the removal order, and

does not diminish petitioner’s access to whatever path for

lawful entry might otherwise be available to him under the

immigration laws.” Id. at 498. 

Morales-Izquierdo did not consider or address the effect of

8 U.S.C. § 1252(a)(2)(D), which prevents other statutory provisions in the Immigration and Nationality Act from being

construed to preclude review over “constitutional claims or

questions of law.” Id. All other circuits that have considered

§ 1252(a)(2)(D) in conjunction with § 1231(a)(5) have concluded that § 1252(a)(2)(D) vests circuit courts with the ability to review reinstated removal orders. See Lorenzo v.

Mukasey, 508 F.3d 1278, 1282 (10th Cir. 2007); Debeato v.

Mukasey, 505 F.3d 231, 235 (3d Cir. 2007); Ramirez-Molina

v. Ziglar, 436 F.3d 508, 513-14 (5th Cir. 2006). Because we

ultimately conclude that Martinez-Merino has not shown that

he suffered a “gross miscarriage of justice,” we do not decide

today the precise effect of § 1252(a)(2)(D) on our review of

reinstated removal orders. 

[1] Morales-Izquierdo cuts out the feet of Martinez’s argument. He was disabled by § 1231(a)(5) from attacking the

MARTINEZ-MERINO v. KEISLER 4921
reinstatement order by attempting to show that he had

received inadequate notice of his rights in the removal proceeding. Like Morales, Martinez suffered no prejudice in

being subjected to the summary process provided an alien

who returns illegally after removal. 

Dissenting in Morales-Izquierdo, Judge Thomas pointed

out that the decision raised “serious Suspension Clause concerns.” Id. at 508. After all, the great writ “shall not be suspended unless when in Cases of Rebellion or Invasion the

public safety may require it.” U.S. Const. art. I, § 9, cl. 2.

Obviously neither rebellion or invasion are relevant to this

case. Is habeas unconstitutionally suspended? Where evidence

is necessary to make a case for issuance of the writ, the practical effect of the statute is to forestall the case. 

[2] The difficulty with this argument is that the statutory

impact on the writ causes no prejudice to Martinez. If he

could get an evidentiary hearing and if he could prove that he

was not advised of his rights because he understood neither

English nor Spanish, how would such proof advance his

cause? Morales-Izquierdo holds that he cannot challenge the

order of reinstatement by establishing a procedural defect of

this kind in the underlying order of removal. Habeas review

of the reinstatement order would provide no remedy for Martinez because he does not allege any constitutional infirmity

in the reinstatement procedure he received. See MoralesIzquierdo, 486 F.3d at 497-98. 

Martinez-Merino himself characterizes the provisions of

the Real ID Act as a suspension of the great writ because

Martinez-Merino cannot prove his case without submitting

evidence, and, he asserts, “the Court of Appeals cannot conduct evidentiary hearings.” 

The accuracy of the latter assertion is doubtful: in appropriate circumstances we have taken evidence. But his assertion

here is irrelevant. We need not decide whether the great writ

4922 MARTINEZ-MERINO v. KEISLER
was suspended. In an abundance of caution, we assume, without deciding, that Martinez-Merino may still pursue his

habeas claim in this court to which habeas claims have been

transferred. We accept without evidence his claim that he was

not advised of his procedural rights in the reinstatement hearing. He has not shown a “gross miscarriage of justice.”

Ramirez-Juarez v. INS, 633 F.2d 174, 175-76 (9th Cir. 1980).

He is not entitled to relief. 

Accordingly, the petition is DENIED. 

MARTINEZ-MERINO v. KEISLER 4923