Alejandro Ortiz-Alfaro v. Eric Holder, Jr.

Petitioner Alejandro Ortiz-Alfaro (“Ortiz”) seeks review of 8 C.F.R. § 208.31 , arguing the regulation is unlawful because it precludes him from applying for asylum. The Government asks us to dismiss for lack of jurisdiction because the Department of Homeland Security (“DHS”) is still considering whether Ortiz has a reasonable fear of persecution, which may permit Ortiz to apply for withholding of removal. We dismiss Ortiz’s petition for lack of jurisdiction.

I

If an alien removed pursuant to a removal order subsequently reenters the United States illegally, the original removal order may not be executed against him again unless it is reinstated by an authorized official. Morales-Izquierdo v. Gonzales, 486 F.3d 484, 487 (9th Cir.2007) (en banc). Before DHS can remove an alien pursuant to a reinstated removal order, DHS must comply with procedures set forth in 8 C.F.R. § 241.8 (a) and (b). See Galindo-Romero v. Holder, 640 F.3d 873, 877 (9th Cir.2011). First, under 8 C.F.R. § 241.8 (a), an immigration officer must “(1) obtain the prior order related to the alien, (2) confirm that the alien under consideration is the same alien who was previously removed or voluntarily…