UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

RAMON DURAN-HERNANDEZ, Petitioner,

v. JOHN ASHCROFT, United States Attorney General; MICHAEL HESTON, District Director, Immigration and Naturalization Service (“INS”); and JAMES W. ZIGLAR, Commissioner, INS, Respondents. No. 02-9513

ORDER Filed October 28, 2003

Before TACHA , Chief Judge, HOLLOWAY and EBEL , Circuit Judges.
Respondent’s motion for publication of this court’s order and judgment filed on July 21, 2003 is granted. A copy of the p ublished opinion is attached.

Entered for the Court PATRICK FISHER, Clerk of Court By: Amy Frazier Deputy Clerk

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 21 2003 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RAMON DURAN-HERNANDEZ, Petitioner, v. JOHN ASHCROFT, United States Attorney General; MICHAEL HESTON, District Director, Immigration and Naturalization Service (“INS”); and JAMES W. ZIGLAR, Commissioner, INS, Respondents. No. 02-9513

Petition for Habeas Corpus Pursuant to an Order of Transfer I ssued by the United States District Court for the District of Kansas (D.C. No. 01-3488-RDR)
James S. Phillips, Jr., Phillips & Phillips, Charte red, Wichita, Kansas, for Petitioner. Cindy S. Ferrier, Office of Immigration Litigation, Civil Division (Linda S. Wendtland, Assistant Director, with her on the brie f), United States Department of Justice, Washington, D.C., for Respondents.

Before TACHA , Chief Judge, HOLLOWAY and EBEL , Circuit Judges.

EBEL , Circuit Judge.- 2 -

Petitioner Ramon Duran-Hernandez (hereinafter “Duran”), a Mexican citizen, was ordered removed from the United States in 1998 after he falsely claimed United States citizenship at the U.S.–Mexic o border. He was barred from reentering the country for five years. Only two ye ars later, however, Duran reentered the United States illegally and thereafte r applied for adjustment of his immigration status. The Immigration and Naturalization Service rejected his application and reinstated his prior removal order. Duran, represented by counsel, filed a habeas corpu s petition in the United States District Court for the District of Kansas, c hallenging the INS’s reinstatement procedures on due process grounds. T he district court, adopting the recommendation of a magistrate judge, transferred t he petition to this Court pursuant to 28 U.S.C. § 1631. Both parties assume, and we agree, that the petition is now before us as a direct appeal from t he INS adjudication. Because we find that Duran has failed to prove thathe was prejudiced by the INS’s reinstatement proceedings, we AFFIRM the decision of the INS.

BACKGROUND On April 12, 1998, Mexican national Ramon Duran-Hernandez was caught attempting to enter the United States illegally wit h his American citizen wife at the Presidio, Texas, Point of Entry. Later that day, in a signed, sworn statement- 3 -

to an INS officer, Duran admitted that he was not aU.S. citizen and that both he and his wife had falsely claimed that he was a U.S. citizen when they tried to cross the border that morning. Duran admitted know ing that it was a crime to falsely claim U.S. citizenship. Duran also admitte d to having lived illegally in the United States for 10 years prior to his reentry att empt and to having been previously ordered deported in 1997. That same day, the INS found that Duran was inadmis sible to the United States under the Immigration and Nationality Act (“ INA”), which renders inadmissible any alien who falsely represents his U nited States citizenship. Immigration and Nationality Act § 212(a)(6)(C)(ii), 8 U.S.C. § 1182(a)(6)(C)(ii). Pursuant to the applicable provision of the INA, th e INS ordered Duran returned to Mexico. 8 U.S.C. § 1225(b)(1)(A)(i), INA § 235( b)(1)(A)(i). The INS gave Duran a written notice stating that 1) he was barre d from reentering the United States for five years from the date of his departur e (April 12, 1998); 2) if he wished to reenter the United States before the end of that five-year period, he must ask for and receive permission to do so from the Attorney General (by using application forms available at any U.S. Consulate o r INS office); and 3) that he could be criminally prosecuted for reentering witho ut such permission. Duran signed the notice and walked back to Mexico. On January 15, 2000—within the five-year ban—Duran again illegally1 That statute allows an alien who is physically pres ent in the United States

to apply to the Attorney General for adjustment of status upon submission of a $1,000 application fee. 8 U.S.C. § 1255( i )(1)(C), INA § 245( i )(1)(C). Upon receipt of such an application and the sum her eby required, the Attorney General may adjust the status of the alien to that of an alien lawfully admitted for permanent residence if —(A) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence ; and (B) an immigrant visa is immediately availabl e to the alien at the time the application is filed. 8 U.S.C. § 1255( i )(2), INA § 245( i )(2) (emphasis added). - 4 - entered the United States by walking through the de sert near El Paso, Texas, in violation of 8 U.S.C. § 1182(a)(9)(A)(i), INA § 212 (a)(9)(A)(i). He was not caught at that time and remained in the United Stat es. On April 13, 2001, Duran applied (through his wife) for adjustment of status based on his 1997 marriage to an American ci tizen, under 8 U.S.C. § 1255( i ), INA § 245( i ). 1 Eight months later, on December 18, 2001, the IN S denied Duran’s application. To be eligible for adj ustment of status, an alien must be “admissible to the United States for permanent residence.” 8 U.S.C. § 1255( i )(2)(A), INA § 245( i )(2)(A). Because Duran had reentered the United States within the five-year ban and without first applying to the Attorney General for permission, the INS found that Duran was not “a dmissible to the United States for permanent residence” and therefore was ineligib le to have his status adjusted. The INS also noted that Duran had admitted to havin g illegally entered the United- 5 -

States ten years before his 1998 attempt. The next day—December 19, 2001—the INS began and co ncluded the process of reinstating Duran’s 1998 removal order. During that process, Duran gave a second sworn statement to the INS. Before h e gave that statement, he signed a section of the Sworn Statement form acknow ledging that he understood his rights, that anything he said could be used aga inst him, and that he did not wish to consult with a lawyer. In his handwritten answers to preprinted questions on the Sworn Statement form, Duran admitted, inter alia , 1) that he had been deported on April 12, 1998; 2) that he last entered the United States on January 15, 2000, “near El Paso, TX. walking in the desert” ; and 3) that he never applied to the U.S. Attorney General for permission to reenter the country after his initial deportation. That same day (December 19, 2001), the INS had Duran sign a Notice of Intent/Decision to Reinstate Prior Order, which stated that the INS would be reinstating its April 12, 1998 removal order pursuant to 8 U.S.C. § 1231(a)(5), INA § 241(a)(5). That statute—which is at the core of Duran’s appeal—states as follows: (5) Reinstatement of removal orders against aliens illegally reentering. If the Attorney General finds that an alien has reente red 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 Act, and the alien- 6 -

shall be removed under the prior order at any time after the reentry. 8 U.S.C. § 1231(a)(5), INA § 241(a)(5) (emphasis ad ded). The Notice form informed Duran that he “may contest this determinat ion by making written or oral statement [sic] to an immigration officer. You do not have the right to a hearing before an immigration judge.” Duran checked a box stating that he did not wish to make a statement, and he signed the form. The I NS then issued its final reinstatement decision, which consisted of an INS o fficial’s signature under one sentence of preprinted text that stated, “Having re viewed all available evidence, the administrative file and any statements made or submitted in rebuttal, I have determined that the above-named alien is subject to removal through reinstatementof [sic] the prior order, in accordanc e with section [illegible on the blurred copy in the record, but presumably § 241(a) (5)] of this Act.” On December 31, 2001, Duran filed (through counsel) a habeas corpus petition with the United States District Court for the District of Kansas. First, he challenged the constitutionality of the INA’s reins tatement provisions as violative of his due process rights. Second, he challenged the INS’s purported failure to pursue his application for adjustment of status bef ore reinstating the prior removal order. A magistrate judge recommended thatthe case be transferred to the Court of Appeals, because “reinstatement is act ually the enforcement of a prior final removal order,” over which the Court of Appeals has exclusive2 On April 5, 2002, Duran filed an emergency motion f or a stay of deportation pending appeal, as he was to be deporte d to Mexico later that day. In an April 5 Order, we denied the motion. Although n either the parties nor the record mention Duran’s current whereabouts, we pres ume that he is now back in Mexico.

3 Although § 1252 speaks specifically of judicial rev iew of “orders of removal,” every circuit to address the question has found § 1252 to cover review of reinstatement orders as well. See, e.g. , Gomez-Chavez v. Perryman , 308 F.3d 796, 801 (7th Cir. 2002); Ojeda-Terrazas v. Ashcroft , 290 F.3d 292, 295 (5th Cir. 2002); Alvarez-Portillo v. Ashcroft , 280 F.3d 858, 861, 868 (8th Cir. 2002); Bejjani v. INS , 271 F.3d 670, 674 (6th Cir. 2001); Velasquez-Gabriel v. Crocetti , 263 F.3d 102, 105 (4th Cir. 2001); Castro-Cortez v. INS , 239 F.3d 1037, 1043 (9th Cir. 2001). Our Circuit has two conflicting unpublished opinion s regarding this issue. Compare Lopez-Herrera v. INS , No. 00-9501, 2000 U.S. App. LEXIS 774 (10th Cir. Jan. 20, 2000), at *3 (“[T]his court is specif ically barred from reviewing the agency’s reinstatement of a prior deportation order.”), with Yanez-Torres v. INS , No. 99-9504, 2000 U.S. App. LEXIS 1525 (10th Cir. F eb. 4, 2000), at *2 (“We (continued...) - 7 - jurisdiction. Citing Castro-Cortez v. INS , 239 F.3d 1037, 1046 (9th Cir. 2001), the magistrate judge concluded that transfer, rathe r than dismissal, was appropriate “because jurisdiction in these cases ha s been in a state of flux.” The district court agreed and ordered the case transfer red to the Tenth Circuit. 2

DISCUSSION Congress has declared that petitions for review of INS orders of removal must be filed “with the court of appeals for the ju dicial circuit in which the immigration judge completed the proceedings.” 8 U. S.C. § 1252(b)(2), INA § 242(b)(2). 3 Duran did not follow this procedure; rather, he b ypassed direct3 (...continued)

have jurisdiction to review the final order reinstating the 1981 deportation order under 8 U.S.C. § 1252(a)(1)....”). We recognize th at unpublished decisions are not binding authority, United States v. Goff , 314 F.3d 1248, 1250 (10th Cir. 2003), and therefore follow the weight of authorityin other circuits and our own opinion in Yanez-Torres . Accordingly, we hold that we have jurisdiction t o hear petitions for direct review of reinstatement orders under 8 U.S.C. § 1252, INA § 242.

4 We note that Duran’s petition, although filed in th e wrong court, was timely. Petitions for review of orders of removal must be filed within thirty days of the date of the final order of removal. 8 U.S.C . § 1252(b)(1), INA § 242(b)(1). Petitioner’s reinstatement order became final on De cember 19, 2001, and he filed his habeas petition twelve days later, on December 31, 2001.

5 Duran’s brief states, “Petitioner originally filed a habeas corpus action while incarcerated in Kansas, but the United States District Court ordered the case transferred to the Tenth Circuit Court of Appeals. The case is now proceeding as a petition for review of the agency action .” Pet. Br. at 2 (emphasis added). For its part, the Government’s brief states, “A distric t court transferred Duran’s case (initially brought as a habeas petition ) to this Court under 28 U.S.C. § 1631.... (continued...) - 8 - review and filed a habeas corpus petition (his firs t error) in the district court (his second error) under 28 U.S.C. § 2241. 4 The district court then transferred that petition to the Tenth Circuit under the transfer st atute, 28 U.S.C. § 1631, which permits a court to transfer a case where there is “ a want of jurisdiction” and transfer would be “in the interest of justice.” Id

. The district court’s use of the transfer statute cures Duran’s second error, the fi ling of his petition in the district court as opposed to the Tenth Circuit. That leaves us with only his first error—filing a habeas petition instead of a direct appeal—to consider. Both parties proceed as if Duran had properly filed a di rect appeal with this court. 5 In5 (...continued)

This Court has jurisdiction to review the INS’ rein statement order pursuant to Section 242(a)(1) of the INA, 8 U.S.C. § 1252(a)(1) .” Gov’t Br. at 2 (emphasis added). - 9 - the interests of justice, we will also treat Duran’ s petition as if it had been so filed and review it as a direct appeal of the INS’s action. See Lopez v. Heinauer , 332 F.3d 507, 510–11 (8th Cir. 2003); Batista v. As hcroft , 270 F.3d 8, 12 (1st Cir. 2001); Castro-Cortez v. INS , 239 F.3d 1037, 1047 (9th Cir. 2001). Turning to the merits of Duran’s appeal, his due pr ocess claim fails because he has not proven that he suffered prejudice as a r esult of the INS’s reinstatement procedures. The regulation governing reinstatementof removal orders, 8 C.F.R. § 241.8(a), directs an immigration officer to deter mine three facts before reinstating a prior order of removal: 1) whether th e alien was subject to a prior order of removal; 2) whether the alien is the same alien who was previously removed; and 3) whether the alien illegally reenter ed the United States. Because Duran contests none of these facts, he cannot prove that additional procedural safeguards would have changed the result in his cas e. This failure to prove prejudice leads us to reject Duran’s due process cl aim. See Ojeda-Terrazas v. Ashcroft , 290 F.3d 292, 302 (5th Cir. 2002); United States v. Garcia-Martinez , 228 F.3d 956, 964 n.10 (9th Cir. 2000); Salazar v. Ashcroft , No. 01-3342, 2002 U.S. App. LEXIS 12814 (3d Cir. June 27, 2002), at * *4-5.- 10 -

We also reject Duran’s adjustment of status claim. Duran asserts that the INS reinstated his removal order before it adjudicated his adjustment of status application. The record proves that the opposite i s true: the INS adjudicated and rejected Duran’s adjustment of status application o n December 18, 2001, and it reinstated his removal order one day later, on Dece mber 19, 2001. Duran’s claim to the contrary clearly lacks merit. For the foregoing reasons, we AFFIRM the decision o f the INS.