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Keywords

jurisdictiondue processasylum
jurisdictionattorneyhearingparole

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Moreno-Martinez v. Barr

Facts

Jorge Moreno-Martinez, a native and citizen of Honduras, entered the United States in 1999 and was issued a notice of removal by DHS in 2007. He conceded to the charges of removability and applied for asylum, which was denied. After leaving the U.S. in 2012, he reentered illegally and was detained by ICE in 2018, leading to the reinstatement of his prior removal order. Moreno-Martinez claimed he was denied due process because he did not receive a copy of the reinstatement order and could not contest the validity of the removal order.

Moreno-Martinez is a native and citizen of Honduras. He arrived in the United States in 1999, returned to Honduras in 2003, and then reentered the United States in 2004. On January 3, 2007, DHS issued a notice of removal. In a document titled 'Notice to Appear,' DHS charged Petitioner with violating 8 U.S.C. 1182(a)(6)(A)(i) because he is '[a]n alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General.' That document also ordered Moreno-Martinez to appear on 'a date to be set' at 'a time to be set.' Almost two months later, on February 28, 2007, the immigration court sent Petitioner a 'Notice of Hearing in Removal Proceedings.' The Notice of Hearing set June 26, 2007, as the initial hearing date for his removal proceedings.

Issue

Did the appellate court have jurisdiction to review the validity of the removal order and was there a due-process violation in the reinstatement proceedings?

Did the appellate court have jurisdiction to review the validity of the removal order and was there a due-process violation in the reinstatement proceedings?

Rule

The court held that it has jurisdiction to review constitutional claims or questions of law under 8 U.S.C. 1252(a)(2)(D), but lacks jurisdiction to reopen a removal order if the challenge is filed after the 30-day deadline set by 8 U.S.C. 1252(b)(1).

we have jurisdiction to review Moreno-Martinez's due-process challenge to the reinstatement order because it presents a constitutional issue that we may review under the jurisdictional grant in 1252(a)(2)(D). We may not, however, grant the relief that Moreno-Martinez seeks because we lack jurisdiction to reopen the underlying removal order.

Analysis

The court determined that while it could review Moreno-Martinez's due-process challenge to the reinstatement order, it could not grant the relief he sought because he failed to challenge the underlying removal order within the required 30-day period. The court emphasized that even if a due-process violation occurred, Moreno-Martinez could not show he was prejudiced by the violation since he could not make arguments that the court lacked jurisdiction to hear.

The sole basis for Moreno-Martinez's prejudice argument is that he was denied the opportunity to argue that the immigration judge and the BIA were without jurisdiction to enter the underlying removal order because the Notice to Appear did not include the date and time for the initial hearing date. However, because (as explained below) we lack jurisdiction to review the validity of the removal order, Petitioner's claim must fail; he cannot have been prejudiced by an inability to make arguments to us that we do not have jurisdiction to hear.

Conclusion

The court denied the petition for review, concluding that Moreno-Martinez's due-process challenge lacked merit due to the lack of jurisdiction to reopen the underlying removal order.

For all these reasons, the petition for review is DENIED.

Who won?

The government prevailed in the case because the court found that it lacked jurisdiction to review the removal order and that Moreno-Martinez could not demonstrate any prejudice from the alleged due-process violation.

The government prevailed in the case because the court found that it lacked jurisdiction to review the removal order and that Moreno-Martinez could not demonstrate any prejudice from the alleged due-process violation.

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