### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 13

- 60420 Summary Calendar

JOSE APOLINAR MARTINEZ, Also Known As M. Jose Apolinar, Also Known a s Apo in ar Garcia Martinez , Also Known a s Jose Apolinar Martin Garcia, Also Known a s Apolinar Garcia Martinez,

Petitioner ,

versus
JEH JOHNSON , Secretary, Department of Homeland Security , Respondent

.

Petition for Review of an Order of the Boa rd of Immigration Appeals

Before JOLLY , SMITH , and CLEMENT , Circuit Judges

. JERRY E. SMITH, Circuit Judge :

Jose Martinez challenges the reinstatement of an order of removal by Immigration and Customs Enforcement (“ICE”). He contends that the original
order of deportation must be rescinded as unconstitutional and, alternatively, United States Court of Appeals Fifth Circuit 

### FILED January 24, 2014

Lyle W. Cayce Clerk Case: 13-60420 Document: 00512511217 Page: 1 Date Filed: 01/24/2014No. 13

- 60420
that it cannot be reinstated bec ause he legally reentered the United States. Because we do not have jurisdiction to review the first issue, and because the
second is meritless, we deny the petition for review

.

I. Martinez, a citizen of Mexico, first entered the United States by unknown method in 1983. In 1990, he was convicted of possession of a weapon, and in early 1993 he was convicted of burglary and sentenc ed to five years ’ impris onment. In 1993, the former Immigration and Nat ural ization Service (“INS”) took Mart inez into custody and issu ed an order to show cause and notice of h earing. Th at o rder, written in English and Spanish, was person ally served on Martinez, who signed it a nd a request for a prompt hearing and waiver of his right to a fourteen

- day minimum notice peri od. The o rder, how

ever, was not read to Martinez in Spanish , and no trans lator was provided. Two days later , an immigration judge (“IJ”) took Martinez’s pleadings during a deportation hearing . The IJ annotated the order to show cause and notice of h ea ring to reflect the pleadings at the hearing , dating and initialing the bottom of the page. T he IJ found Martinez deportable , noting that the “Respondent has made no application for relief from deportation.” The INS issued a warrant of deportation , and Martinez was deported three days later. In 1997, Martinez reentered by crossing a river and applied for a new immigration card from the INS without disclosing his previous deportation. The INS issued him a card under the name “Jose A Martinez” and a ne w alien registration number. In 2000, however, INS officials recognized Martinez as having been previously deported and apprehended him as he reentered the United States in a bus. Although he told officials that , because he had been issued a new card, he did not know that his reent ry was in violation of his

2 Case: 13-60420 Document: 00512511217 Page: 2 Date Filed: 01/24/2014No. 13

- 60420 deportation order , his removal order was reinstated , and he was deported in
2002. He did not contest th at action either before or after his deportation. That same year, Martinez again reentered. In May 2013, ICE detained
him and reinstated the 1993 deportation order. Martinez refused to sign the
doc ument and declined making a statement contesting the reinstatement
deter mination but , in June, filed a protest of the reinstatement order and this pet ition

. He challenges (1) the original 1993 order of deportation as violative of his due

- process rights and (2) the present reinstatement order as improper because of his legal reentry after deportation.

II. In addressing Martinez’s challenge to the origi nal order, we must first
decide whether this court has jurisdiction to entertain the petition in this regard. Congress has specifically eliminated this court’s jurisdiction to reopen or review original orders of removal in the reinstatement of removal orders against aliens illegal ly reentering the United States. See 8 U.S.C. § 1231(a)(5 ). But Congress did not preclude the review of constitutional claims or questions of law raised in a petition for review. See 8 U.S.C. § 1252(a)(2)(D). Any collat

er al attack o n an underlying order of removal, including constitutional or legal questions, however, may be considered only if the alien demonstrates that
admin istrative remedies have been exhausted or the initial removal proceed

ings constituted a gross mi scarriage of justice. See Ramirez

- Molina v. Ziglar , 436 F.3d 508, 514 (5th Cir. 2006). Although the record does not indicate that the hearing regarding the 1993 order of deportation took place in absentia and Martinez was in custody during the entirety of the time at issue, Martinez claims that he did not receive

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notice via cer tified mail as required in the order to show c ause 1 ; t herefore, he

was never afforded the opportunity to participate in the deportation hearing. This, he claims, constituted a vio lation of his due

- process rights and a gross
mis carriage of justice. Though this court has announced no precise standard for what constitutes a gross miscarriage of justice, we have held that there is

no gross miscarriage where the petitioner failed to c ontest his removability in prior proceedings. See Ramirez

- Molina , 436 F.3d at 514

– 15. 2 Martinez did not contest deportation at any time when initially deported in 1993 and again failed to do so when his 1993 deportation order was rein

stated in 2002. Add itionally, he repeatedly engaged in self

- help by illegally reentering in violation of his deportation on numerous occasions. Th at is enough to foreclose the possibility that the initial removal proceedings could
constitut e a gross miscarriage of justi ce , so we do not have jurisdiction to hear
Martinez’s due

- process challenge.

III. Martinez challenges the legality of the INS’s present reinstate ment of the 1993 removal order, claiming that he legally reentered after his depor

tation , as witnessed by hi s receiving a new immigration card ; a s a result, his previous deportation order cannot be reinstated. 3 We can decide this claim

1 “TO BE CALENDARED AND NOTICE PROVIDED BY THE OFFICE OF THE IMMIGRATION JUDGE. NOTICE WILL BE MAILED TO THE ADDRESS PROVIDED BY THE RESPONDENT.”

2 S ee also United States ex rel. Steffner v. Carmichael , 1 8 3 F.2d 19, 20

– 21 (5th Cir. 1950) ( “[Petitioner] did not elect to test the validity of his 1936 deportation order. He had his day before the immi gration authorities, who decided that he should be deported. There is no show ing that his failure to test the validity of his order was due to any cause other than his desire not to do so.”)

.
3 “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 i ts original date and is no t subject to being reopened 4 Case: 13-60420 Document: 00512511217 Page: 4 Date Filed: 01/24/2014No. 13

- 60420 under 8 U.S.C. § 1252 , which provides us jurisdiction to review “orders of
removal

. ” 4 We addressed this issue in Anderson , 611 F.3d at 276

– 77. In that case, a Nigerian immigrant was deported after being convicted of two crimes. Id. She reentered the United States years later under her new married name, and an immigration official stamped her passport as she entered. Id. After deter

mining its mistake, the g overnment reinstated the earlier removal order and sought to have her deported. Id. W e held that the passport stamp did not

sug gest that the alien had lawfully reentered the coun try and that because she did not fir st receive permission from the Attorney General to apply for re

admission as required by statute, 5 she had illegally reentered , and the INS had properly reinstated her removal order. Id

. Here, as in Anderson , Martinez did not receive permission from the Attorney General to reapply for readmission. Instead, he illegally cros sed the
bor der and then applied at the INS for a new immigration card, under a

or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed u nder the prior order at any time after reentry.” 8 U.S.C. § 1231(a)(5) (emphasis added); see also 8 C.F.R. § 241.8(a) (“In establishing whether an alien is subject to this section, the immigration officer shall determine the following: (1) Whether the ali en has been subject to a prior order of removal. .

. . (2) The identity of the alien

. . . . (3) Whether the alien unlawfully reentered the United States. .

. .” (emphasis added)).

4 We have analogized “removal orders” to “reinstatement orders” in the juri sdictional context. See Anderson v. Napolitano , 611 F.3d 275, 277

– 78 (5th Cir. 2010). In Anderson , we did not directly address the effect of 8 U.S.C. § 1252(a)(2)(C) on our jurisdiction to review reinstatement orders where the underlying removal order in volves an aggravated felon or other criminal alien covered by the statute. I t seems unlikely that Congress intended to strip our jurisdiction regarding the underlying removal order involving criminal aliens but not the orders reinstating their removal, es pecially in light of the fact that we have jurisdiction under 8 U.S.C. § 1252 only because of analogizing reinstatement orders with removal orders. W e
are , however, bound by our precedent in this matter.

5 8 U.S.C. § 1182(a)(9) (A)(iii) (“Clauses (i) and (ii) shall not apply to an alien seeking admission within a period if, prior to the date of the alien’s re embarkation at a place outside the United States or attempt to be admitted from foreign contiguous territory, the Attorney General has consented to th e alien’s reapplying for admission .” (emphasis added)). 5 Case: 13-60420 Document: 00512511217 Page: 5 Date Filed: 01/24/2014No. 13

- 60420 different identity and number, and without divulging that he previously had
been deported. Successful ly deceiving immigration officials into providing one with a new immigration card does not constitute either permission to reenter from the Attorney General or legal reentry. Therefore, Martinez’s challenge to
the reinstate order is without merit.
Because Martinez does not present any meritorious challenges over which we have jurisdiction, the petition for review is DENIED

.

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