De Leon v. Ashcroft

Good Law
105 F. App'x 176
United States Court of Appeals for the Ninth CircuitJune 30, 2004No. 02-71585California2,686 words

Opinion

Lead Opinion

MEMORANDUM **

Gregorio Vitales De Leon petitions for review of the Immigration and Naturalization Service’s order reinstating his prior order of deportation under I.N.A. § 241(a)(5), 8 U.S.C. § 1231 (a)(5). We have jurisdiction to review De Leon’s petition for review of a reinstatement order under I.N.A. § 242(a), 8 U.S.C. § 1252 (a). See Castro-Cortez v. INS, 239 F.3d 1037 , 1043-44 (9th Cir.2001). For the reasons set forth below, 1 we deny De Leon’s petition.

De Leon first contends that the reinstatement statute is inapplicable to him because he was deported, not removed. He points to the text of the statute, which reads in full:

8 U.S.C. § 1231 (a)(5). De Leon reasons that because this statute only refers to orders of “removal,” it is inapplicable to deportation orders.

De Leon’s position, however, is impossible to square with IIRIRA § 309(d)(2): “any reference in law to an order of removal shall be deemed to include a reference to an order of exclusion and deportation or an order of deportation.” As the Fourth Circuit has explained, “IIRIRA § 309(d)(2) expands the definition of removal in [the reinstatement statute] to include deportation.” Valasquez-Gabriel v. Crocetti…

Dissenting Opinion

Pregerson, J.

dissenting.

PREGERSON, Circuit Judge.

De Leon, a citizen of the Philippines, came to the United States on October 10, 1985, as a non-immigrant visitor. On November 21, 1990, he married a lawful permanent resident. On December 6, 1990, De Leon was nonetheless found deportable for overstaying his non-immigrant visa. Accordingly, he was ordered to voluntarily depart no later than December 5, 1991. De Leon did not leave the country until October 1997, when he visited Canada and reentered the United States without inspection two days later. After remaining in the United States for an additional four years, De Leon filed an application for adjustment of status based on his marriage.

*179 At his adjustment of status interview, the INS reinstated De Leon’s 1990 deportation order, pursuant to INA § 241(a)(5), and took him into custody for illegally reentering the United States after having been previously ordered deported. Section 241(a)(5), enacted in 1996 as part of the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), Pub L. No. 104-208, 110 Stat. 3009 -546 (1996), provides:

INA § 241(a)(5), codified at 8 U.S.C. § 1231 (a)(5).

I dissent because I believe…

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