NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 14a0882n.06

No. 14-3130

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ELISEO OVALLE-RUIZ,

Plaintiff-Appellee,

v.

ERIC H. HOLDER, JR., United States 

Attorney General,

Defendant-Appellant.

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ON PETITION FOR REVIEW

OF A FINAL ORDER OF THE

BOARD OF IMMIGRATION

APPEALS

OPINION

BEFORE: NORRIS, MOORE, and GIBBONS, Circuit Judges

KAREN NELSON MOORE, Circuit Judge. Immigration officers arrested Petitioner 

Eliseo Ovalle-Ruiz for being in the United States unlawfully and, that same day, reinstated a 

prior order of removal from December 2001. In this appeal, Ovalle-Ruiz contests the 

government’s reinstatement of the December 2001 removal order, arguing that reinstatement was 

improper because the underlying removal order violated his due process rights and because

immigration officers failed to exercise properly their discretion by reinstating the prior removal 

order without first considering factors favorable to Ovalle-Ruiz. Because we do not have 

jurisdiction to review the underlying removal order and because immigration officers did not 

improperly reinstate the removal order, we DENY Ovalle-Ruiz’s petition for review.
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I. FACTUAL AND PROCEDURAL HISTORY

Eliseo Ovalle-Ruiz is a native and citizen of Mexico. Administrative Record (“A.R.”) at 

8 (Form I-213 at 2). On December 17, 2001, immigration authorities apprehended Ovalle-Ruiz

for being in the United States unlawfully and notified him that he was subject to removal 

pursuant to Immigration and Nationality Act § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i). 

A.R. at 18 (Notice to Appear at 1); A.R. at 16 (Stipulated Req. for Removal Ord. and Waiver of 

Hr’g at 4). That same day, Ovalle-Ruiz signed a Stipulated Request for Removal Order and 

Waiver of Hearing (“Stipulated Request”) in which Ovalle-Ruiz agreed, among other things, that 

by signing the Stipulated Request: he would be promptly removed from the United States; he 

waived his right to counsel, to appear before an immigration judge, and to appeal; he read the 

document in Spanish and understood its consequences; and he requested removal “voluntarily, 

knowingly, and intelligently.” A.R. at 13‒17 (Stipulated Req. for Removal Ord. and Waiver of 

Hr’g at 1‒5). The Stipulated Request was written in English and Spanish. Ovalle-Ruiz also 

signed a form titled “Notificación De Derechos,” or “Notice of Rights,” which set forth in 

Spanish that he had a right to a hearing, to contact an attorney, and to communicate with 

diplomatic officers. A.R. at 20 (Notificación De Derechos); see also Respondent Br. Addendum 

(Notice of Rights). Ovalle-Ruiz initialed the box on the form indicating that he was in the 

United States illegally, he gave up his right to a hearing, and he wished to be returned to Mexico. 

Id. Without holding a hearing, an immigration judge granted the Stipulated Request and ordered
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Ovalle-Ruiz removed to Mexico on December 27, 2001. A.R. at 11 (Order Granting Stipulated 

Removal).

Over the next two years, Ovalle-Ruiz was arrested by immigration authorities three more 

times for illegally entering the United States. A.R. at 9 (Form I-213 at 2). The government 

allowed Ovalle-Ruiz to return voluntarily to Mexico following two arrests in the fall of 2002. Id. 

But, after his arrest in March 2004, the government notified Ovalle-Ruiz that it intended to 

reinstate the December 2001 removal order rather than grant a voluntary return. A.R. at 24 (Not. 

of Intent/Decision to Reinstate Prior Ord.). On March 18, 2004, Ovalle-Ruiz declined to make a 

statement contesting the government’s decision to reinstate the December 2001 removal order, 

id., and he was removed to Mexico.

On January 17, 2014, immigration officers again apprehended Ovalle-Ruiz. Ovalle-Ruiz

told immigration officers that he is married and has a child who is a U.S. citizen but admitted 

that he was in the United States illegally. A.R. at 8‒9 (Form I-213 at 1‒2). The government 

notified Ovalle-Ruiz that it intended to again reinstate the December 2001 removal order. A.R. 

at 1 (Not. of Intent/Decision to Reinstate Prior Ord.). Ovalle-Ruiz was informed that he could 

contest the government’s decision to reinstate the prior removal order to an immigration officer. 

Id. But rather than do so, Ovalle-Ruiz wrote “Refused to Sign” on the form asking whether he 

wished to make a statement contesting the government’s determination. Id. In response to his 

January 17, 2014 arrest, the government also filed a criminal complaint against Ovalle-Ruiz for 

illegal reentry pursuant to 8 U.S.C. § 1326, and a grand jury indicted him on that charge. Shortly 
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after Ovalle-Ruiz filed a motion to dismiss the indictment, which attacked the constitutionality of 

the December 2001 removal order, the government also moved to dismiss the indictment. The 

district court granted the government’s motion to dismiss.

Ovalle-Ruiz now appeals the government’s decision to reinstate the December 2001 

removal order.

II. ARGUMENT

On appeal, Ovalle-Ruiz’s main argument is that the government improperly reinstated the 

underlying December 2001 removal order because the removal order violated his due process

rights. Ovalle-Ruiz argues that, because he could not speak or read English, he had difficulties 

reading Spanish, and the immigration judge did not inquire whether Ovalle-Ruiz knowingly and 

voluntarily waived his rights, the underlying removal order was fundamentally unfair. OvalleRuiz also argues that the government failed to provide him an opportunity to submit evidence 

challenging the lawfulness of the underlying removal order and did not properly exercise its 

discretion prior to reinstating the order. In response, the government asserts that we do not have 

jurisdiction to address the underlying removal order and immigration officers properly reinstated 

the prior removal order.

First, we agree with the government that we do not have jurisdiction to review the 

December 2001 removal order. We have jurisdiction to review final orders of removal, and we 

treat reinstatement orders the same as removal orders for purposes of our jurisdiction. 8 U.S.C.

§ 1252(a)(5); Villegas De La Paz v. Holder, 640 F.3d 650, 653 (6th Cir. 2010). Generally, a 
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“prior order of removal is reinstated from its original date and is not subject to being reopened or 

reviewed.” 8 U.S.C. § 1231(a)(5). But, through 8 U.S.C. § 1252, Congress created an exception 

to this jurisdictional limitation, which states: “Nothing in subparagraph (B) or (C), or in any 

other provision of this chapter (other than this section) which limits or eliminates judicial review, 

shall be construed as precluding review of constitutional claims or questions of law raised upon a 

petition for review filed with an appropriate court of appeals in accordance with this section.” 

8 U.S.C. § 1252(a)(2)(D). Thus, “§ 1252(a)(2)(D) re-vests the circuit courts with jurisdiction 

over constitutional claims or questions of law raised in the context of reinstatement 

proceedings.” Villegas, 640 F.3d at 656.

Ovalle-Ruiz would have us end the jurisdictional inquiry here. But the language in

§ 1252(a)(2)(D) contains a relevant limitation—it makes clear that our jurisdiction to review 

“constitutional claims or questions of law” in removal proceedings is not cabined by 

“subparagraphs (B) and (C)” in § 1252(a)(2) or “any other provision of this chapter (other than 

this section).” 8 U.S.C. § 1252(a)(2)(D) (emphasis added). This means that “the savings clause 

in § 1252(a)(2)(D) permitting review of [constitutional or legal] claims does not apply to 

jurisdictional limitations within that section.” Juarez-Chavez v. Holder, 515 F. App’x 463, 465 

(6th Cir. 2013) (emphasis and alteration in original) (quoting Cordova–Soto v. Holder, 659 F.3d 

1029, 1031 (10th Cir. 2011), cert. denied, ––– U.S. ––––, 133 S. Ct. 647 (2012)); Garcia de 

Rincon v. Dep’t of Homeland Sec., 539 F.3d 1133, 1138 (9th Cir. 2008) (“Section 1252(a)(2)(D) 

does not apply to the jurisdictional limitations codified elsewhere in § 1252.”) (emphasis in 
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original); Hussain v. Keisler, 505 F.3d 779, 784 (7th Cir. 2007) (“Section 1252(a)(2)(D) plainly 

states that other limitations on judicial review in ‘this section’—that is, section 1252—still 

apply.”).

This is important because § 1252 contains a number of jurisdictional limitations (other

than in subparagraphs (B) and (C)). Relevant here, § 1252(b)(1) states that a petition to review 

an order of removal “must be filed not later than 30 days after the date of the final order of

removal.” 8 U.S.C. § 1252(b)(1). The thirty-day time limit is “both mandatory and 

jurisdictional.” Prekaj v. INS, 384 F.3d 265, 267 (6th Cir. 2004) (internal quotation marks

omitted). As a result, a petitioner “cannot collaterally attack the underlying order if he failed to 

seek review of that order in accordance with § 1252(b)(1).” Juarez-Chavez, 515 F. App’x at 

466; Verde-Rodriguez v. Attorney Gen. U.S., 734 F.3d 198, 202 (3d Cir. 2013) (“[T]he thirty-day 

time limit set forth in § 1252(b)(1) is not altered by § 1252(a)(2)(D).”). Here, Ovalle-Ruiz did 

not appeal the December 2001 removal order until he raised this challenge almost thirteen years 

later. We thus do not have jurisdiction to review the constitutionality of the underlying removal 

order. See Juarez-Chavez, 515 F. App’x at 466 (holding that the court had no jurisdiction to 

resolve the constitutionality of a reinstated 2006 stipulated removal order)1; Cordova-Soto, 

 

1We noted in Juarez-Chavez that we do not preclude the possibility that an alien could 

raise a Suspension Clause challenge to § 1252(b)(1) “where the provision forecloses judicial 

review of an underlying removal order in a reinstatement proceeding; and where, either due to 

ineffective assistance of counsel or misconduct by government officials, the alien was prevented 

from challenging that underlying order and now is barred from reopening his removal 

proceedings (as a means to challenge that underlying order) because he is subject to 

reinstatement under § 1231(a)(5).” 515 F. App’x at 467. Ovalle-Ruiz does not raise such a 
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659 F.3d at 1032 (“[B]ecause Ms. Cordova–Soto failed to file her petition for review within 

thirty days of her 2005 removal order, we lack jurisdiction to review that order, including 

constitutional claims or questions of law.”); Verde-Rodriguez, 734 F.3d at 202‒03 (thirty-day 

clock starts at filing of original removal order not filing of reinstatement order).

We do have jurisdiction, however, to review a challenge to the reinstatement order. 

8 U.S.C. § 1252(a)(5); Villegas, 640 F.3d at 653. Relying on Villa-Anguiano v. Holder, 727 F.3d 

873 (9th Cir. 2013), Ovalle-Ruiz argues that immigration officers failed to exercise their 

discretion because they reinstated the December 2001 removal order without “consider[ing] all 

of the favorable and unfavorable factors relevant to the exercise of its discretion.” Petitioner Br. 

at 23‒25. In particular, Ovalle-Ruiz asserts that the government should have considered his 

marriage to a U.S. citizen, their five-year old U.S. citizen daughter, his lengthy residence in the 

U.S. without any real criminal history, and the dismissal of the illegal reentry indictment by the 

district court, in which Ovalle-Ruiz raised the due process violations that occurred during the 

underlying removal proceedings. Id. at 23‒24 (citing Villa-Anguiano).

These arguments have no merit. If the government determines that an alien has illegally 

reentered after having been removed, the prior removal order “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 under the prior order at any time after the reentry.” 8 U.S.C.

 

challenge here. Moreover, as noted above, he failed to contest the government’s decision to 

reinstate the same 2001 removal when he was previously removed in 2004. See A.R. at 24 (Not. 

of Intent/Decision to Reinstate Prior Ord.).
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§ 1231(a)(5). The implementing regulations similarly state that an alien who illegally reenters 

after removal “shall be removed” by reinstating the prior order, and “[t]he alien has no right to a 

hearing before an immigration judge in such circumstances.” 8 C.F.R. § 241.8(a) (emphasis 

added); Villegas, 640 F.3d at 655; cf. 8 U.S.C. § 1229a(b)(4) (describing an alien’s rights in the 

original removal proceedings, including a right to counsel, to present evidence, and to crossexamine government witnesses, among others). Prior to reinstating a removal order, the 

government must simply “advise the alien that he or she may make a written or oral statement 

contesting the determination,” and “consider whether the alien’s statement warrants 

reconsideration of the determination.”2 8 C.F.R. § 241.8(b).

Here, the government notified Ovalle-Ruiz that he could contest the government’s 

decision to reinstate the December 2001 removal order, and Ovalle-Ruiz “Refused to Sign” the 

portion of the document indicating whether he would contest the decision. A.R. at 1 (Not. of 

Intent/Decision to Reinstate Prior Ord.). And he does not challenge the sufficiency of the above 

statutory scheme. Moreover, when Ovalle-Ruiz was previously given the opportunity to contest 

reinstatement of the December 2001 removal proceedings following his 2004 arrest, he expressly 

declined to do so. See A.R. at 24 (Not. of Intent/Decision to Reinstate Prior Ord.). In any event, 

although Ovalle-Ruiz now argues that the government failed to consider certain factors relevant 

 

2

The government must also determine whether the alien has been subject to a prior order 

of removal, identify the alien, determine whether the alien unlawfully reentered the United 

States, and provide written notice that the alien is subject to removal. 8 C.F.R. § 241.8(a)‒(b). 

Ovalle-Ruiz does not argue that the government failed to satisfy these requirements.
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to the reinstatement determination, he failed to put those factors before the government by 

challenging reinstatement of the prior removal order.3

Contrary to Ovalle-Ruiz’s claim, Villa-Anguiano does not save his claim. In VillaAnguiano, the court assessed whether reinstatement proceedings accorded the petitioner adequate 

due process after the petitioner successfully challenged the underlying removal order as part of a 

§ 1326 prosecution. 727 F.3d at 876‒77 n.1. In that case, the government notified the petitioner 

that it would reinstate a prior removal order, but before the actual removal, decided to prosecute 

the petitioner for illegal reentry. Id. at 876. In the illegal reentry proceedings, a district court 

found the underlying removal order invalid as a predicate for prosecution because Villa’s due 

process rights were violated in the proceedings giving rise to the underlying removal order. Id. 

at 876‒77. Then, the day after dismissal of the criminal complaint, the government reinstated the 

prior removal order without providing the petitioner an opportunity to raise this new evidence. 

Id. at 879. The Ninth Circuit rejected this approach, holding that when the government invites 

judicial scrutiny of an underlying removal order under § 1326, and “a district court finds 

constitutional infirmities in the prior removal proceedings that invalidate the prior removal for 

purposes of criminal prosecution, the agency cannot simply rely on a pre-prosecution 

determination to reinstate the prior removal order.” Id. at 880.

 

3Notably, the record indicated that Ovalle-Ruiz is married and has a child who is a United 

States citizen, it included his limited criminal history and the length of time he had been in the 

United States, and an immigration officer certified that he reviewed this evidence. A.R. at 8‒9

(I-213 Form at 1‒2); A.R. at 1 (Not. of Intent/Decision to Reinstate Prior Ord.). So OvalleRuiz’s argument that the government failed to consider these factors has no merit. See Petitioner 

Br. at 23‒24.
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But that is not the case here. True, like Villa-Anguiano, the government initially 

attempted to prosecute Ovalle-Ruiz for illegal reentry, and Ovalle-Ruiz moved to dismiss the 

indictment on the ground that the underlying removal proceedings were unconstitutional. See 

United States v. Ovalle-Ruiz, 14-cr-20137, Dkt. No. 12 (E.D. Mich.).4 But the government also 

moved to dismiss the indictment because “the ends of justice would best be served by this 

dismissal,” id. at Dkt. No. 13, and the district court dismissed the indictment “for the reasons 

stated in the government’s motion,” id. at Dkt. No. 14. So, unlike Villa-Anguiano, the district 

court did not conclusively “invalidate the prior removal” because of “constitutional infirmities”

and, no “facts found [or] [] legal conclusions reached in the course of the criminal case” bear on 

the underlying removal proceedings that were reinstated by the government here. VillaAnguiano, 727 F.3d at 880. Consequently, Ovalle-Ruiz’s challenge fails.

III. CONCLUSION

Because we do not have jurisdiction to review the underlying removal order and because 

immigration officers did not improperly reinstate the removal order, we DENY Ovalle-Ruiz’s 

petition for review.

 

4We take judicial notice of the criminal proceedings against Ovalle-Ruiz. See Chase 

Bank USA, N.A. v. City of Cleveland, 695 F.3d 548, 553 n.2 (6th Cir. 2012) (“We can take 

judicial notice of developments in related proceedings in other courts of record.”) (internal 

quotation marks omitted).