In the

United States Court of Appeals

For the Seventh Circuit

No. 18-2886

VICTOR MARTIN VILLA SERRANO,

Petitioner,

v.

WILLIAM P. BARR, Attorney General

of the United States,

Respondent.

On Petition for Review of a Final Removal Order

of the U.S. Department of Homeland Security.

A073 360 777

ARGUED MARCH 26, 2019 — DECIDED MAY 9, 2019

Before BAUER, ROVNER, and BRENNAN, Circuit Judges.

ROVNER, Circuit Judge. In 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
2 No. 18-2886

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.

I.

Villa, 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 beenconvicted 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. 

Villa 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
No. 18-2886 3

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 underthe 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.

II.

In his Petition for Review, Villa contends that the 2005

Order was voidbecause 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 jurisdic-
4 No. 18-2886

tion 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. 

We have 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 underthe 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); TorresTristan v. Holder, 656 F.3d 653, 656 (7th Cir. 2011). See also

Fernandez-Vargas v. Gonzales, 548 U.S. 30, 34–35 (2006) (the
No. 18-2886 5

current version of the reinstatement statute provides for the

broadest use ofreinstatement, 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).

We do, however, have jurisdiction to considerthe 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 whetherthe 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 determining whether an alien

is subject to removal by reinstatement, the immigration officer

must determine:

(1) Whether the alien has been subject to a prior

order of removal. The immigration officer must

obtain the prior order of exclusion, deportation, or

removal relating to the alien.

(2) The identity of the alien, i.e., whether the alien is

in fact an alien who was previously removed, or

who departed voluntarily while under an order of

exclusion, deportation, or removal. ...

(3) Whether the alien unlawfully reentered the

United States. ...

8 C.F.R. § 241.8(a). See also Gomez-Chavez, 308 F.3d at 801 (to

enter an order reinstating a prior order, the DHS must determine: the identity of the alien; whether he or she was subject to
6 No. 18-2886

a prior removal order; and the terms on which he or she left

and reentered the country). 

In this case,the immigration officer obtained the 2005 Order

under which Villa was previously removed, determined that

Villa was the same person who had been removed under that

Order, and then determined that Villa had unlawfully reentered the United States. Indeed, Villa does not dispute that he

is the alien referenced in the 2005 Order, that he was purportedly subject to removal under the 2005 Order, that he previously was removed under that Order, and that he reentered

without a lawful basis. He contends, nevertheless, that the 2005

Order was void from its inception, and the immigration judge

had no jurisdiction to enter it. He argues, in essence, that the

2005 Order may not be reinstated because there is no valid

prior order to reinstate.

In order to avoid the jurisdictional bar that is patent in the

statute, Villa argues that he “does not seek review of an

unreviewable removal order,” but rather requests that “the

Court recognize no valid order ever existed.” Brief of Petitioner, at 6. He suggests that “there is no underlying removal

order because removal proceedings under 8 U.S.C. § 1229a

never took place.” Brief of Petitioner at 7. See also Reply Brief

at 2 (where Villa contends that he “is not requesting the Court

review an old order on its merits,” but instead “challenges

whether there is actually a prior removal order against him.”).

Villa is not claiming that the 2005 Order literally does not exist

but rather is arguing that it is not valid and never was valid
No. 18-2886 7

because of defects in the Notice to Appear.

1 This circular

argument asks the court to bypass the jurisdictional bar on

reviewing underlying orders in reinstatement proceedings by

reviewing the underlying order and finding it void. We decline

this invitation.

Villa relies on this court’s opinion in Mejia Galindo v.

Sessions, 897 F.3d 894 (7th Cir. 2018), for the proposition that,

even in a case where we lack jurisdiction to review an order of

removal, we have the power to unwind a legal error that

created the jurisdictional defect. Villa overreads Mejia Galindo,

which is distinguishable on a number of grounds. In that case,

an immigration judge found that Mejia Galindo was not

removable and declined to enter an order of removal. The

government appealed to the Board of Immigration Appeals

(“BIA” or “Board”), which reversed and found that Mejia

Galindo was removable. But instead of remanding for the

immigration judge to enter an order of removal, the BIA

purported to enter an order of removal on its own authority.

Mejia Galindo then timely petitioned this court for review of

the BIA’s order. 897 F.3d at 895–96. We noted our jurisdiction

to review final orders of removal under 8 U.S.C. § 1252(a)(1),

but we found that the Board lacked any statutory orregulatory

authority to enter a removal orderin the first instance. Because

1

 Villa attached the purportedly void 2005 Order to his opening brief. He

does not dispute that an immigration judge held a hearing and entered an

order; he asserts instead that defects in the Notice to Appear deprived the

immigration judge of jurisdiction to hold the hearing and enter the order,

rendering the order void from its inception, a conclusion which is

impossible to reach without reviewing the 2005 Order and the proceedings

that led to its entry.
8 No. 18-2886

there was no final order of removal, we lacked jurisdiction to

review the merits of the BIA’s order. 897 F.3d at 897–98. But we

also found that our jurisdiction to consider our own jurisdiction included the authority to vacate the BIA’s decision and

remand the matter to address the legal error that gave rise to

the jurisdictional limitation in the first place. 897 F.3d at 898.

Without that authority, Mejia Galindo would have been

without any remedy in the face of the BIA’s ultra vires act.

Unlike Villa, Mejia Galindo filed his petition in a timely

manner soon after the Board entered its ultra vires order. Villa

waited thirteen years to challenge the 2005 Order, well beyond

the time allotted. See 8 U.S.C. § 1252(b)(1) (“The petition for

review must be filed not later than 30 days after the date of the

final order of removal.”). Unlike Villa, Mejia Galindo did not

unlawfully return to the United States after having been

removed. Villa did return after previously having been

removed, and now brings his challenge in the context of a

reinstatement proceeding, where ourjurisdiction is statutorily

limited to review of the circumstances of reinstatement. Unlike

Mejia Galindo, Villa did have other remedies available to him,

remedies that he bypassed by not pursuing them in a timely

fashion in 2005 when the order of removal was first entered.

Villa’s case is in this posture because of his unlawful reentry,

not because of circumstances beyond his control, as happened

to Mejia Galindo. Our reasoning in Mejia Galindo has no

application to the circumstances here.

Because we have no jurisdiction to review the underlying

order in reinstatement proceedings, we must dismiss this

appeal. We noted above that Villa’s challenge to the underlying 2005 Order was also untimely under 8 U.S.C. § 1252(b)(1).
No. 18-2886 9

His claim is also precluded by his failure to exhaust administrative remedies under 8 U.S.C. § 1252(d)(1). For the sake of

completeness, we will briefly address the applicability of

Pereira to the circumstances here.

In Pereira, the Supreme Court considered the narrow

question of whether a notice to appearthat does not specify the

“time and place at which the proceedings will be held,” as

required by § 1229(a)(1)(G)(i), triggers the stop-time rule. 138

S. Ct. at 2113. The Attorney General has discretion to cancel

removal and adjust the status of certain nonpermanent

residents who meet enumerated criteria, including a requirement to be continually physically present in the United States

for not less than ten years immediately preceding the date of

an application for cancellation of removal. Underthe stop-time

rule, the period of continuous presence is deemed to end when

an alien is served with a notice to appear “under section

1229(a)” Pereira, 138 S. Ct. at 2110; 8 U.S.C. §§ 1229(a) (setting

forth the form for a notice to appear); 1229a (governing

removal proceedings); 1229b (governing cancellation of

removal and adjustment of status). Because section 1229(a)

requires a notice to appear to list the date and time for the first

hearing, the Court concluded that a notice to appear that did

not contain the date and time information is not a “notice to

appear under section 1229(a)” and so does not trigger the stoptime rule under 8 U.S.C. § 1229b(d)(1)(A). 138 S. Ct. at 2113–14

(emphasis added). 

Villa seeks to employ Pereira’s narrow holding from the

context of the stop-time rule more broadly to assert that,

because his Notice to Appear did not list the date and time of

his hearing, his Notice to Appear did not vest the immigration
10 No. 18-2886

court with jurisdiction over his case, and any order entered

was therefore void. Many years before the Court decided

Pereira, we rejected the contention that the failure to include

the date and time in a notice to appear deprives the immigration court of jurisdiction so long as the immigration court

serves notice of the time and date on the person named in the

notice to appear. Dababneh v. Gonzales, 471 F.3d 806, 809 (7th

Cir. 2006) (that the government fulfilled its obligations under

8 U.S.C. § 1229 in two documents rather than one did not

deprive the immigration judge of jurisdiction to initiate

removal proceedings). Following Pereira, the BIA rejected the

very argument raised here by Villa in Matter of Bermudez-Cota,

27 I. & N. Dec. 441 (BIA 2018). Also afterthe decision in Pereira,

the Second, Sixth and Ninth Circuits have concluded that

jurisdiction vests with the immigration court where the

mandatory information about the time and date of the hearing

is absent from the Notice to Appear but is provided later in a

notice of hearing issued by the immigration court. Banegas

Gomez v. Barr, — F.3d —, 2019 WL 1768914, *6–*8 (2d Cir.

Apr. 23, 2019); Hernandez-Perez v. Whitaker, 911 F.3d 305, 314–15

(6th Cir. 2018); Karingithi v. Whitaker, 913 F.3d 1158, 1160–61

(9th Cir. 2019). Together with Dababneh, these cases suggest

that the immigration judge did have jurisdiction over Villa’s

2005 proceedings, that the entry of the 2005 Order was not ultra

vires, and that the 2005 Order was therefore not void. But

because we lack jurisdiction to review the 2005 Order, we have

no occasion to reconsider Dababneh in light of Pereira, and so

we reserve that issue for a case in which it matters to the

outcome.

PETITION DISMISSED.