Alvarenga-Villalobos

Section 241(a)(5) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1231 (a)(5) (2001), reinstates a prior order of removal without reopening or judicial review when an alien has reentered the United States illegally after having been removed. This appeal requires us to consider whether the prior order may be collaterally attacked, and if not, whether § 241(a)(5) is constitutional.

When Tito Alvarenga-Villalobos, a native and citizen of El Salvador who was deported in 1997, reentered without permission, the Immigration and Naturalization Service (INS) reinstated his previous order of deportation. He moved to reopen his immigration proceedings to pursue an application for waiver of deportation under INA § 212(c) in light of Magana-Pizano v. INS, 200 F.3d 603 (9th Cir.1999), but the motion was denied. Alvarenga then sought a writ of habeas corpus. In a published opinion, the district court held that § 241(a)(5) precludes review of Alvar-enga’s previous order of deportation, and that applying § 241(a)(5) does not violate due process because Alvarenga was not prevented from seeking judicial review of the previous order. Alvarenga-Villalobos v. Reno, 133 F.Supp.2d 1164…