FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MARCH 5, 2009

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-11095

________________________

Agency Nos. A78-832-140,

A71-793-730

MANUEL ROBERTO AVILA,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(March 5, 2009)

Before TJOFLAT, BLACK and COX, Circuit Judges.

PER CURIAM:
Manuel Roberto Avila, a native and citizen of Peru, through counsel,

petitions this Court for review of an order issued by the Department of Homeland

Security (DHS) on March 6, 2008, reinstating an August 12, 1997, order of

removal, pursuant to 8 U.S.C. § 1231(a)(5).

Avila argues the order of reinstatement violated his due process rights

because (1) he did not have a meaningful opportunity to contest the reinstatement

decision; and (2) there was no underlying removal order, or, in the alternative, any

underlying removal order was invalid because it was the product of due process

violations and constituted an impermissible “negative consequence” of his failure

to post a voluntary departure bond. Avila also contends he is eligible to adjust his

status under 8 U.S.C. § 1255(i).

After review of the record and the parties’ briefs, and having the benefit of

oral argument, we dismiss Avila’s petition in part and deny in part.

I. BACKGROUND

On June 27, 1997, the Immigration and Naturalization Service (INS) of

Arlington, Virginia, served a man claiming to be Roman Moreno-Tapia with a

notice to appear, charging him with removability for being an alien in the United

States without having been admitted or paroled, in violation of 8 U.S.C.

§ 1182(a)(6)(A)(i). On August 12, 1997, the Immigration Judge issued an order

granting Avila voluntary departure “under INS safeguards . . . upon posting a bond

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in the amount of $1,500 by 18 August 97 with an alternate order of removal to

Mexico.” Avila declined to pay the voluntary departure bond and was transported

to Mexico on September 22, 1997.

Avila subsequently reentered the United States and married his wife on

March 28, 2001. She applied on his behalf for adjustment of status that year. The

application was denied but, as of February 5, 2008, had not yet been made final.

On February 5, 2008, Avila was approached by Bureau of Immigration and

Customs Enforcement (BICE) agents at his home. He admitted in a sworn

statement he previously used the name Roman Moreno-Tapia and last entered the

United States in November 2000. He also admitted he had been removed in 1997

and had not subsequently applied for permission to reenter the country.

On March 6, 2008, the Government filed a “Notice of Intent/Decision to

Reinstate Prior Order.” The notice stated that Avila was subject to an order of

removal entered on August 12, 1997, that he was removed pursuant to that order

on September 22, 1997, and that he illegally reentered the United States in

November of 2000. On the same date, DHS issued an order reinstating his prior

order of removal. The instant petition for review followed.

II. JURISDICTION

We review de novo our own subject matter jurisdiction. Sanchez Jimenez v.

U.S. Att’y Gen., 492 F.3d 1223, 1231 (11th Cir. 2007).

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We instructed the parties to brief the following three jurisdictional questions:

(1) whether the order of reinstatement is a “final order of removal” subject to

judicial review; (2) whether this Court has jurisdiction over Avila’s petition for

review, given the underlying removal proceedings occurred in Arlington, Virginia,

but the order of reinstatement was issued in Miami, Florida; and (3) whether this

Court has jurisdiction to review the underlying removal order. Although neither

party disputes this Court’s jurisdiction under the first two issues, we review the

jurisdictional questions for the first time in this Court. With respect to the third

issue, the Government argues we lack jurisdiction to review the August 12, 1997,

removal order.

1. Order of Reinstatement

We have jurisdiction to review “final order[s] of removal” under the

Immigration and Nationality Act. 8 U.S.C. § 1252(a)(1). Section 241(a)(5) of the

INA governs the reinstatement of removal orders, and states “the prior order of

removal . . . is not subject to being reopened or reviewed” and the individual

subject to the order “is not eligible and may not apply for any relief under this

chapter.” 8 U.S.C. § 1231(a)(5). This statute does not provide for administrative

review, so a petitioner subject to a reinstatement order has nothing left to appeal.

See id. Both parties contend § 1252(a)(1) authorizes review of the reinstatement

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order, and we agree. An order of reinstatement is a final order of removal under

§ 1252(a)(1).

2. Jurisdiction over Avila’s Petition for Review

Every circuit to discuss whether § 1252(b)(2) circumscribes subject matter

jurisdiction has concluded § 1252(b)(2) is a nonjurisdictional venue provision. See

Moreno-Bravo v. Gonzales, 463 F.3d 253, 262 (2d Cir. 2006); Georcely v.

Ashcroft, 375 F.3d 45, 49 (1st Cir. 2004); Nwaokolo v. I.N.S., 314 F.3d 303, 306

n.2 (7th Cir. 2002) (per curiam); cf. Jama v. Gonzales, 431 F.3d 230, 233 (5th Cir.

2005) (per curiam) (refusing to raise the nonjurisdictional venue issue sua sponte);

Bonhometre v. Gonzales, 414 F.3d 442, 446 n.5 (3d Cir. 2005) (noting “it would be

a manifest injustice” to transfer the case to another court). Additionally, both

parties agree venue is proper in this Court because the order of reinstatement was

issued in Miami, Florida. We have never addressed whether § 1252(b)(2) merely

defines venue or whether it circumscribes subject matter jurisdiction. On this issue

of first impression, we join those circuits that have concluded § 1252(b)(2) is a

nonjurisdictional venue provision.

Section 1252(b)(2), which is entitled “Venue and forms,” provides as

follows:

The petition for review shall be filed with the court of appeals for the

judicial circuit in which the immigration judge completed the

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proceedings. The record and briefs do not have to be printed. The

court of appeals shall review the proceeding on a typewritten record

and on typewritten briefs.

8 U.S.C. § 1252(b)(2). First, § 1252(b)(2) does not refer to “jurisdiction” or

“judicial review.” See Moreno-Bravo, 463 F.3d at 259 (“In view of the

extraordinary attention Congress directed toward federal jurisdiction over petitions

for review in § 1252, . . . it is hard for us to believe that the legislature would then

neglect to express a similarly clear intent—or any intent at all—to circumscribe

jurisdiction . . . .”). Second, as noted by the Second Circuit, the underlying

purpose and background of the REAL ID Act supports the conclusion that

§ 1252(b)(2) is not a jurisdictional statute. See id. (discussing the REAL ID Act

amendments to § 1252 and concluding “it should be plain beyond any doubt that

§ 1252(b)(2), which was left untouched by those amendments, does not concern

jurisdiction”). Finally, although the title of a statute cannot trump its clear terms,

§ 1252(b)(2) is entitled “Venue and forms,” further supporting the conclusion this

is not a jurisdictional provision. See id. at 260.

In accordance with the language of the statute and sister circuit authority, we

conclude § 1252(b)(2) is a nonjurisdictional venue provision. Further, the

Government concedes venue is proper in this Court because the order of

reinstatement was issued in Miami, Florida. Accordingly, we have jurisdiction to

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review Avila’s order of reinstatement under § 1252(a)(1), and venue is proper in

this Court under § 1252(b)(2).

3. Underlying Removal Order

This Court has jurisdiction to review a final order of removal only if the

alien has first exhausted his administrative remedies, 8 U.S.C. § 1252(d)(1);

Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1251 (11th Cir. 2006), and

has timely filed a petition for review in this Court, 8 U.S.C. § 1252(b)(1); Dakane

v. U.S. Att’y Gen., 399 F.3d 1269, 1272 n.3 (11th Cir. 2005). Although we have

recognized “some due process claims do not require exhaustion . . . we have never

specifically determined which due process claims require exhaustion.” AmayaArtunduaga, 463 F.3d at 1251 (internal citations and quotation marks omitted).

Procedural due process claims, however, “must be raised before the BIA.” Id.

On petition for review, Avila raises procedural due process claims and

alleges no “negative consequences” could attach to his failure to post the voluntary

departure bond. Avila failed to challenge his underlying removal proceedings

before the BIA or this Court. Because Avila failed to exhaust his administrative

remedies or seek timely review of his 1997 deportation order, we lack jurisdiction

to review the underlying validity of that order. We therefore do not address

petitioner’s argument that the underlying removal order was the product of due

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process violations or that it constituted an impermissible “negative consequence”

of his failure to post a voluntary departure bond.

III. DUE PROCESS

We review de novo constitutional due process claims. Ali v. U.S. Att’y Gen.,

443 F.3d 804, 808 (11th Cir. 2006). “In order to establish a due process violation,

an alien must show that he or she was deprived of liberty without due process of

law, and that the asserted error caused him substantial prejudice.” Garcia v. U.S.

Att’y Gen., 329 F.3d 1217, 1222 (11th Cir. 2003) (internal citation omitted). To

show substantial prejudice, the petitioner must show the alleged due process

violation would have affected the outcome of the case. See, e.g., Patel v. U.S. Att’y

Gen., 334 F.3d 1259, 1263 (11th Cir. 2003) (“It is clear that there was no such

prejudice because it is undisputed that at the time of those proceedings Patel was

removable as an alien convicted of an aggravated felony and the result of those

proceedings would have been the same in the absence of the alleged procedural

deficiencies.”).

In establishing whether a prior removal order may be reinstated under the

regulations implementing § 1231(a)(5), an immigration officer must determine

whether (1) the alien has been subject to a prior order of removal, (2) the alien is in

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fact the same alien who was previously removed, and (3) the alien unlawfully

reentered the United States. 8 C.F.R. § 241.8(a)(1)-(3).

In De Sandoval v. U.S. Att’y Gen., 440 F.3d 1276, 1285 (11th Cir. 2006), we

rejected the petitioner’s argument that § 241.8 denied her due process because it

did “not provide her the right to a neutral judge, to appeal BICE’s decision to the

BIA, to be represented by counsel, to develop a record, or to receive adequate

notice of BICE’s intended actions.” We reasoned, because the petitioner had

admitted the three elements necessary to establish her removal under § 241.8(a),

she could not show how the requested process would have affected the outcome in

her case. Id.

Although Avila contends there was no underlying removal order, he

admitted in sworn testimony and in his brief that he was subject to a prior removal

order in 1997. In this respect, § 1231(a)(5) includes voluntary departure orders as

well as removal orders, as it authorizes reinstatement when the alien has

previously been removed or when he has voluntarily departed under an order of

removal. 8 U.S.C. § 1231(a)(5). Because Avila was subject to a prior removal

order, the first element of § 241.8(a) is satisfied. Avila does not dispute the second

or third element under § 241.8(a) and has therefore abandoned these issues. De

Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1006 n.3 (11th Cir. 2008). These

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elements, however, are also met. With respect to the second element, there is no

dispute Avila was the subject of the 1997 removal order, as he admitted in a sworn

statement to using the name of Roman Moreno-Tapia, the name on the prior

removal order. With respect to the third element, there is also no dispute he

unlawfully reentered the United States, as he admitted in a sworn statement he

failed to obtain permission to reenter the country. Because the three elements of

§ 241.8 are satisfied, Avila cannot show substantial prejudice from his alleged

inability to contest the reinstatement decision. Accordingly, the order of

reinstatement did not violate Avila’s due process rights.

IV. RELIEF UNDER 8 U.S.C. § 1255(i)

Certain aliens physically present in the United States may apply to the

Attorney General for adjustment of status to that of an alien lawfully admitted for

permanent residence. 8 U.S.C. § 1255(i)(1). We held in De Sandoval that

“§ 1231(a)(5) bars illegal reentrants from seeking an adjustment of status under

§ 1255(i).” 440 F.3d at 1285. Accordingly, Avila’s argument is without merit.

V. CONCLUSION

For the reasons stated above, Avila has not shown any due process violation

with respect to the order of reinstatement, and we lack jurisdiction to review the

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validity of the underlying removal order. We also conclude Avila is not entitled to

relief under § 1255(i).

PETITION DISMISSED IN PART, DENIED IN PART.

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