United States Court of Appeals

For the First Circuit

No. 04-1968

HELDER DACOSTA PONTA-GARCA,

Petitioner,

v.

JOHN ASHCROFT, ATTORNEY GENERAL,

Respondent.

ON PETITION FOR REVIEW OF A FINAL ORDER OF

THE UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT

Before

 Torruella, Circuit Judge,

Campbell, Senior Circuit Judge,

and Selya, Circuit Judge.

Roberto Gonzalez and Audette, Bazar, Berren & Gonzalez Inc. on

memorandum for petitioner.

John D. Williams, Attorney, Office of Immigration Litigation,

on memorandum for respondent.

October 20, 2004
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SELYA, Circuit Judge. The petitioner, Ponta-Garca, a

Portugese national, seeks review of an order reinstating an earlier

order of deportation because of his allegedly illegal reentry into

this country. The respondent, the Attorney General, has moved to

dismiss, contending that jurisdiction is lacking because the

petition for review was not timely filed. We agree. Thus, we are

constrained to grant the motion to dismiss.

The petitioner was ordered deported in 1987 after overstaying

his authorized period of visitation. For reasons that are

unexplained in the record, that order was never executed.

Seventeen years later, on May 24, 2004, he was apprehended by

agents of the respondent and served with a one-page document (Form

I-871) entitled "Notice of Intent/Decision to Reinstate Prior

Order." This document relied on a revised statutory provision that

took effect in 1997. The statute provides in part as follows:

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 the alien shall be removed

under the prior order at any time after the reentry.

INA § 241(a)(5), 8 U.S.C. § 1231(a)(5). The first part of Form I871 consisted of the "notice of intent" to reinstate and was signed

by an immigration officer (Agent Nelligan). It charged that the

petitioner had departed voluntarily on April 23, 1992, pursuant to

the deportation order; that he had illegally reentered the country

four days later; and that he was thus subject to removal by
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reinstatement of the prior order. The notice informed petitioner

that he could "contest this determination by making a written or

oral statement to an immigration officer." It also stated that

"[t]he facts that formed the basi[s] of this determination, and the

existence of a right to make a written or oral statement contesting

this determination, were communicated to the alien." In a box

meant to indicate whether the petitioner wished to make such a

statement, the handwritten notation "refuse to answer" appears. A

space for his signature is also empty. 

The following day, on May 25, 2004, another immigration

officer (Agent Riccio) signed a box at the bottom of Form I-871

endorsing a pre-printed "Decision, Order, and Officer's

Certification" that the petitioner was subject to removal through

reinstatement of the earlier deportation order. The petitioner

sought reconsideration of this decision in a letter from counsel

dated June 28, 2004, addressed to the field office director. That

request remains pending. On July 19, 2004, fifty-five days after

Agent Riccio's May 25 decision, the petitioner filed the instant

petition for review. 

An order reinstating an earlier order of deportation is

subject to review under 8 U.S.C. § 1252. See, e.g., Lattab v.

Ashcroft, ___ F.3d ___, ___ (1st Cir. 2004) [2004 WL 2059762, at

*2]; Arevalo v. Ashcroft, 344 F.3d 1, 9 (1st Cir. 2003). Section

1252(b)(1) provides that "[t]he petition for review must be filed
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not later than 30 days after the date of the final order of

removal." This deadline is a "strict jurisdictional requirement."

Zhang v. INS, 348 F.3d 289, 292 (1st Cir. 2003); see also PimentalRomero v. INS, 952 F.2d 564, 564 (1st Cir. 1991) (applying former

8 U.S.C. § 1105a(a)(1)). The respondent, noting that the instant

petition was filed more than thirty days after Agent Riccio's May

25 decision, asserts that jurisdiction is lacking. 

The petitioner's principal response requires an examination of

8 C.F.R. § 241.8, the regulation governing reinstatement of removal

orders. The paragraph entitled "Notice" reads as follows:

If an officer determines that an alien is subject to

removal under this section, he or she shall provide the

alien with written notice of his or her determination.

The officer shall advise the alien that he or she may

make a written or oral statement contesting the

determination. 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. 

Id. § 241.8(b). The petitioner's argument runs along the following

lines: (i) this provision affords the alien a right to make a

statement and thereby seek reconsideration of the determination to

reinstate; (ii) by definition, reconsideration may occur only after

that determination has been made (here, after Agent Riccio's May 25

decision); (iii) the thirty-day appeal period does not begin to run

until the reconsideration request has been resolved; and (iv) far

from being tardy, the instant petition is, if anything, premature.

The second step in this analysis fails. It is apparent that
1 Should the eventual disposition of that motion not be in

the petitioner's favor, he may, of course, file a separate petition

for review with respect thereto. 

2 We summarily reject the petitioner's other arguments. For

the reasons discussed above, his exhaustion-of-administrativeremedies rationale is unpersuasive. See Castro-Cortez v. INS, 239

F.3d 1037, 1044-45 (9th Cir. 2001). So too is his reliance on 8

C.F.R. § 1003.3(a)(2); that regulation applies only to decisions

that are appealable to the Board of Immigration Appeals. 

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the "determination" subject to "reconsideration" is not the one

made by Agent Riccio in the May 25 decision and order, but, rather,

the one made by Agent Nelligan in the May 24 notice of intent.

This is confirmed by the language in the notice (which uses the

word "determination" five times), as well as by the first two

sentences of 8 C.F.R. § 241.8(b). It is also apparent that Agent

Riccio's ruling accomplished whatever reconsideration was deemed

warranted here (which may have been none, given the petitioner's

refusal to provide a statement). Accordingly, counsel's June 28

letter cannot be viewed as invoking the reconsideration mechanism

set forth in section 241.8(b); it can only be seen as a separate

motion to reconsider or to reopen, and, thus, unconnected to the

cited regulation. The filing of such a motion does not toll the

thirty-day period for seeking judicial review.1 See Stone v. INS,

514 U.S. 386 (1995). Consequently, we are compelled to dismiss the

instant petition for lack of jurisdiction.2 

We add a coda. If the representations made by the

petitioner's counsel are accurate, he would appear to have a strong
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case on the merits. He contends that he did not voluntarily depart

under the prior deportation order but, rather, left the country

temporarily to attend a wedding. He also contends that he did not

reenter the country illegally but, rather, was inspected and

allowed entry. If either of these assertions is correct, the

reinstatement provision would appear to be inapplicable by its

express terms. Moreover, the petitioner contends that the 1987

deportation order was invalidated by the federal district court in

Connecticut at some point after his reentry. If that is so, the

administrative reinstatement of that order would appear

problematic. See Chacon-Corral v. Weber, 259 F. Supp. 2d 1151,

1164 (D. Col. 2003) ("Because deportation for unauthorized reentry

under INA § 241(a)(5) is under the original order of deportation,

a determination that the original order was invalid renders §

241(a)(5) inapplicable in a given case."). Particularly in light

of the due process concerns that can arise in this context, see,

e.g., Lattab, ___ F.3d at ___ n.6 [2004 WL 2059762, at *9 n.6];

Arreola-Arreola v. Ashcroft, 383 F.3d 956, ___ n.5 (9th Cir. 2004)

[2004 WL 1977663, at *2 n.5]; Castro-Cortez v. INS, 239 F.3d 1037,

1047-50 (9th Cir. 2001), we encourage the respondent to reexamine

the case with care.

We need go no further. The petition for review is untimely

and, hence, is dismissed for lack of jurisdiction. The temporary

stay of removal imposed by this court on July 30, 2004 is
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rescinded. 

It is so ordered.