NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0180n.06 No. 11-4224 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

L AURENCI O J UAREZ -CHAVEZ ,

Petitioner,

v. ERI C H. HOL DER, J R., Attorney Gene ral, Respondent. ) ) ) ) ) ) ) ) ) ) ON PETI TI ON FOR REVI EW OF AN ORDER OF THE BO ARD OF I MMI GRATI ON APPEAL S

BEFORE: K

ETHL EDGE and WHIT E, Circuit Judges; LUDING TON, District Judge. * HELE NE N. WHITE , Circuit Judge. L aure ncio J uare z-Chavez (Juarez-Chavez), a native and ci t i z en of Mexi co, has filed a petition for revie w of the g overnme nt’s reinstateme nt of his Dec ember 2006 stipulated remova l order pursuant to 8 U.S.C. § 1231(a) (5), following his illega l

ree ntry into the country

. Howeve r, he challeng es only the underly ing Dec ember 2006 remova l order , from which his petition is untimely under § 1252(b)( 1). We there fore DI SMI SS the petition for lack of jurisdiction. I. I n October 2006, an immigration office r serve d J uare z-Chavez with a notice to ap p ea r (NTA) , char g ing him as being remova ble as an alien prese nt in the United S t at es wi t h o u t being

The Honora

ble Thomas L

. Ludington, United States District J udg e for the Easter n District * of Michig an, sitting by

desig nation.No. 11-4224

Juarez- Chavez v. H

older admitted or parole d, or who arr ived in the United States at any time or place other than as desig nated by the attorney g ener al, pursuant to section 212(a) (6)( A)(i) of the I mmigration and Nationality Act (I NA), 8 U.S.C. § 1182(a) (6)( A)(i)

. J uare z-Chavez, pro se , signe d a stipulated reque st for a remova l order and waiver of his rig ht to a hear ing befor e an immigration judge (I J ). He ag ree d, in pertinent part, that: the fa ctual alleg ations contained in the NTA wer e true; he should be remove d based on the NTA’s char g e; and he was either ineligible for any form of relief from remova l (such as asy lum, withholding of remova l, or voluntary depar ture) or, if elig ible, he was waiving his rig ht to apply for such relief (AR 106

– 0 9 ). The stipulation, written in Eng lish and Spanish, set forth his further acknow ledgm en t s t h at he rea d the document and understood its conseque nces; and he made the

remova l reque st voluntarily , knowing ly , and intelligently (AR 109). An immigration office r signe d the document, cer

tify ing that he had explained the contents and meaning to J uare z-Cha v ez in a lang uag e he unde rstood (AR 110). I n Dec ember 2006, an I J order ed J uare z-Chavez remove d from the United States to Mexi co, pursuant to the written stipulation (AR 104). J uare z-Chavez did not seek revie w of the I J ’s order

. That same month, he w as re moved from the United S tates (Suppl

. AR 4–6, 11). He subsequently

ree ntere d the country and, in October 2011, Ohio authorities arr ested him on a soliciting char g e (AR 98; Suppl. AR 11). I n the wake of his arr est, immigration officia ls detained him. The Depa rtment of Homeland Security (DHS) then serve d him with a notice of intent to reinstate the Dec ember 2006

remova l order: I n acc ordanc e with Section 241(a) (5) o f t h e [I NA], y ou are remova

ble as an alien who has illega lly ree ntere d the United States afte r having been previously remove d or depar ted voluntarily while under an order of exclusion, deporta tion or remova l and are there fore subject to remova l by reinstateme nt of the prior order

. You may contestNo. 11-4224

Juarez- Chavez v. H

older this deter mination by making a written or oral statement to an immigration office r. You do not have a

rig ht to a hear ing be fore an [I J ]. Suppl. AR 2 (emphasis omitt ed). This petition for revi ew followed, in which J uare z-Chavez challeng es the validity of the underlying Dec ember 2006 remova l order

. He first argues that the I J enter ed the stipulated order without independe ntly deter mining, o r h o lding a hear ing to deter mine, that his ag ree ment to the stipulation wa s voluntary , knowing , and intelligent, in violation of 8 C.F.R. § 1003.25(b). J uare zChavez further argues that, to the extent the ag ency regulati o n permits an I J to “rubbe r-stamp” a

remova l stipulation signe d by a pro se alien without holding a hear ing or otherwise inquiring int o the voluntary

nature of the stipulation, the ag ency proce dure violate s due proc ess. II. A. We have jurisdiction to revie w J uare z-Chavez’ s challeng e to the 8 U.S.C. § 1231(a) (5) reinstateme nt order , but only to the extent that we have jurisdicti on to revie w final order s of remova l. See 8 U.S.C. § 1252(a) (1); Villegas de la Paz v. Holder , 640 F.3d 650, 653 (6th Cir. 2010). I f DHS “finds that an alien has ree ntere d the United States il l ega l l y afte r having been remove d or having depar ted voluntarily , under an order of remova l, the prior order of remova l is reinstated from its orig inal date and is not s u b j ec t t o b ei ng reope ned or revie wed

. . . .” 8 U.S.C. § 1231(a) (5); cf. 1

Section 1 2 3 1 ( a ) ( 5 ) ’ s im

p le me n ti n g r e g

u la ti o n require s that, befor e an alien is remove d under 1 a prior remova l order , the immigration office r must (1) obtain the prior remova l order rela ted to the alien, (2) confirm that the alien under consideration is the same alien who was previously remove d or voluntarily depar

ted, and (3) confirm that the alien unlawfully ree ntere d th e Un i t ed States. 8 C.F.R. § 241.8(a)

. Only if these require ments are met is the alien remova ble under the prior order

. Id. § 241.8(c) . Fur

ther, the of

fice r must provide the a lien with written notice of the de termination and g ive the alien an opportunity to make a statement contesting the deter mination. Id. § 241.8(b).No. 11-4224

Juarez- Chavez v. H

older Elgharib v. Napolit ano , 600 F.3d 597, 607 (6th Cir. 2010). Notwithstanding § 1231(a) (5)’ s narr ow scope, we reta in jurisdiction to revie w “con s t itutional claims or questions of law raised upon a petition for revie w.” 8 U.S.C. § 1252(a) (2)( D). I n Villegas , we joined sever al of our sister circ uits in “conc lud[ ing] that § 1252(a) (2)( D) re- vests the circ uit courts with jurisdiction over constitutional claims or questions of law raised in the context of reinstateme nt proce eding s.” 6 4 0 F. 3 d at 656 (citing Garcia de Rin co n v. DHS, 539 F.3d 1133, 1137 (9th Cir. 2008); Lorenzo v. Mukase y , 508 F.3d 1278, 1282 (10th Cir. 2007); Debe ato v. Att’y Gen. of U.S. , 505 F.3d 231, 235 (3d Cir. 2007); Ramirez-M

olina v. Ziglar , 436 F.3d 508, 513–14 ( 5th Cir. 2006)). Section 1252(a) (2)( D) g ives us jurisdiction to revie w “constitutional claims or questions of law”—notwithstanding the j urisdiction-stripping pr ovisions that elimi nate judicial r eview of final order s of removal ag ainst criminal aliens or involving the de nial of discre tionary relief , or “in a ny other provision of this chapte r,” which includes reinstateme nt order s under § 1231(a) (5). But aside from the “stated exception s , the saving s clause in § 1252(a) (2)( D) permitting revie w of [ const itutional or leg al] claims does not apply to jurisdictional limit ations withi n that section.” Cordova-Soto v. Holder , 659 F.3d 1029, 1031 (10th Cir. 2011) (citing Lorenzo , 508 F.3d at 1281),

cert. denied , 133 S. Ct. 647 (2012); see Garcia de Rincon , 539 F.3d at 1138 (“Sec tion 1252(a) (2)( D) does not apply

to the jurisdictional limi tations codified else wher e in § 1252.”)

. Thus, notwithstanding § 1252(a) (2)( D), we lack jurisdiction over J uare z-Chavez’s collater al challeng e to his underlying remova l order beca use his challe n ge t o t hat order is untimely

. See 8

However , “[ t ] h e al i en has no rig ht to a hear ing befor e an [I J ]” in a reinstateme nt proce eding

. Id. § 2 4 1

. 8(a)

. J uare z-Chavez does not contest these reinstateme nt proce dures or purport that the a g e n c y failed to c omply

with them.No. 11-4224

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older U.S.C. § 1252(b)( 1). The 30-day time limit set forth in § 1252(b)(1 ) “i s b o t h mandatory and juris d ictional.” Prekaj v. INS , 384 F.3d 265, 267 (6th Cir. 2004) (citation omitted). “[Section] 1252(a) (2)( D), whic h authorizes this court to decide c onstitut ional claims and questions of law, is expli citly constraine d by the 30-day time limit in § 1252(b)( 1).” Sharashidze v. Mukase y , 542 F.3d 1 1 7 7 , 1 1 78–79 (7th Cir. 2008); see Gor v. Holder , 607 F.3d 180, 184–85 (6th Cir. 2 0 1 0 ) (empha siz ing the jurisdictional nature of the 30-day time limit , notwithstanding an alien’s argument that he soug ht to raise constitutional and leg al claims). At least two of our sister circ uits have ruled, in addre ssing pe titions seeking revie w of reinstateme nt order s, that untimely collater al challeng es to underly

ing remova l o rd er s ca nnot be rea ched g iven § 1252(b)( 1)’s jurisdictional bar. See Cordova-Soto , 659 F.3d at 1031–32; Avila v. U.S. Att’y Gen. , 560 F.3d 1281, 1285 (11th Cir. 2009) (per curiam). When reinstating a prior remova l order in il l ega l reentry case s, DHS does not reissue the p ri o r order (which would restar t the 30-day period within which the alien may file a petition for revie w) but reinstates the prior order “fr om its o ri gi n al date.” 8 U.S.C. § 1231(a) (5). The reinstateme nt proce dure “esta blishe s a p roce ss to remove [t he alien] ‘under the prior order at any time afte r the ree ntry .’” Fernandez- Vargas v. Gonzales , 548 U.S. 30, 44 (2006) (quoting 8 U.S.C. § 1231(a) (5)) ; see 8 C.F.R. § 241.8(a) . Although Juarez-Chave z’s Dece mber 2006 removal order fo rms the basis for the reinstateme nt proce dure, he cannot collatera lly attack the underly ing order if he fa iled to seek re view of tha t order in a ccor dance with § 1252(b)(1)

. To the ex tent we have previously addre ssed t he merits of an ali en ’s due proce ss challeng e to an underlying remova l order in the context of a petition f or revie w of a reinstateme nt order , seeNo. 11-4224

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older Villegas , 640 F.3d at 656–57, our discussion doe s not c ontrol the jurisdictional issue here beca use

we did not addre ss the interplay betwee n § 1252(a) (2)( D) and (b)( 1) with respe ct t o underlying

remova l order s in the co n t ex t o f reinstateme nt proce eding s. See Steel Co. v. C itizens for a Better Env’t , 523 U.S. 83, 91 (1998); Lewis v. C asey , 518 U.S. 343, 352 n.2 (1996) (“[T] he ex istence of unaddre ssed jurisdictional defe cts has no pre cede ntial effe ct.”)

. B. J uare z-Chavez does not alleg e, nor does the rec ord indicate, that he was unable to challeng e the Dec ember 2006 stipulated remova l order

. His counsel opines that “stipulated remova l order s are apt to be ca

rried out quickly

with waiver

of appea l,” but the re is no a lleg ation that he wa s actua lly preve nted from challeng ing the Dec ember 2006 order in the prior proce eding

. A stipulated remova l order , like most other final remova l order s, is subject to the petition-for-r eview proce dure. J uare zChavez’s claim t hat hi s stipulated reque st for a remova l order and wa iver of rig hts (including any waiver of appeal) was not voluntary , knowing , and int ellige nt should have been raised in a ti mely ap p ea l to the Board of I mmigration Appea ls, and then in a ti mely petition for review in this co u rt pursuant to § 1252(b)( 1). The petition-for-r eview proce ss is, at least fac ially , an ad eq u at e and ef fective means for an alien to contest the leg ality of his remova l order , thus satisfy ing the Suspension Clause. See Muka v. Bake r , 559 F.3d 480, 485 (6th Cir. 2009). Fur ther, “[a]li ens who

are remove d may continue to pur sue their petitions for revie w” f iled in the court of a

ppeals. Nken v. Holder , 556 U.S. 418, 435 (2009). Nonethele ss, we do not prec lude the possibili ty that an alien may raise an as-a p p l i ed Suspension Clause challeng e to § 1252(b)( 1) in the scena rio wher e the provision fore closes judicialNo. 11-4224

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older revie w of an underlying remova l order in a reinstat em ent proce eding ; and wher e, either due to ineffe ctive assistance of counsel or miscon d u ct by g overnme nt officia ls, the alien was preve nted from challeng ing that underly ing order and now is barr ed from reope ning his remova l proce eding s (as a means to challeng e that underlying order) beca use he is subject to reinstateme nt under § 1231(a) (5). See INS v. St. Cyr , 533 U.S. 289, 300 (2001) (explaining that “[a] construction of [t he I NA] tha t w ould entirely prec lude revie w of a pure question of law by any court would g ive rise to

s u bstantial constitutional questions” in light of the Suspension Clause, which require s s o me “ ju d ic ia l intervention i n depo rtation case s” (citation omitted)); Ramirez-M olina , 436 F.3d at 513; compare 8 U.S.C. § 1231(a) (5) (whe re DHS deter mines that an alien is su b j ec t t o reinstateme nt, the prior

remova l order cannot be reope ned) with Luna v. Holder , 637 F.3d 85, 86–87 (2d Cir. 2011) (holding that the 30-day time limit to file a petition for revie w does not violate the Suspension Clause wher e aliens alleg ed that they wer e preve nted from filing timely petitions due to ineffe ctive assistance of counsel or g overnme ntal interfe renc e beca use the statutory motion to reope n proce ss is an adequate and eff ective substitut e for habea s revie w). Howeve r, we do not decide this issue beca use it is not implicated her e. III. For the fore g oing r easons, we DI SMI SS t he petition for lac k of jurisdiction.