Nebraska Public Power District v. FERC

United States Court of Appeals
For the Eighth Circuit
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No. 19-3409
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Juan Hernandez Gonzalez
lllllllllllllllllllllPetitioner
v.
William P. Barr, Attorney General of United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: April 16, 2020
Filed: April 21, 2020
[Unpublished]
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Before BENTON, WOLLMAN, and GRASZ, Circuit Judges.
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PER CURIAM.
Mexican citizen Juan Hernandez Gonzalez petitions for review of an order,
issued by the Department of Homeland Security (DHS) in 2019, reinstating a prior
expedited order of removal against him, and also petitions for review of a final order

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of removal entered by an immigration judge upholding a DHS immigration officer’s
reasonable fear determination. As a preliminary matter, we conclude that Hernandez
Gonzalez waived any challenge to the immigration judge’s order because he failed
to address it in his briefs. See Chay-Velasquez v. Ashcroft, 367 F.3d 751, 756 (8th
Cir. 2004) (claim not raised or meaningfully argued in opening brief is deemed
waived).
This court has limited jurisdiction to review a reinstatement order, including
due process challenges. See Ochoa-Carrillo v. Gonzales, 437 F.3d 842, 843 (8th Cir.
2006) (recognizing jurisdictional authority); Cardoza Salazar v. Barr, 932 F.3d 704,
709 (8th Cir. 2019) (petitioner must demonstrate fundamental procedural error and
prejudice to succeed on a due process challenge to a reinstatement order). For
reversal, Hernandez Gonzalez argues that there was not substantial evidence to
support the 2019 reinstatement order because the underlying removal order was not
properly issued, served, or executed, and he suggests that his due process rights were
violated as a result. We lack jurisdiction, however, to review a collateral attack on
the underlying removal order in a petition for review of a reinstatement order. See
8 U.S.C. § 1231(a)(5) (stating, in part, that a reinstated prior order of removal “is not
subject to being reopened or reviewed”); Lara-Nieto v. Barr, 945 F.3d at 1059-60 &
n.4 (8th Cir. 2019) (this court lacks jurisdiction to consider a collateral challenge to
the validity of an underlying removal order, including a due-process challenge based
on alleged infirmities in the removal order, because this court’s jurisdiction is limited
to the reinstatement order itself); Briones-Sanchez v. Heinauer, 319 F.3d 324, 327
(8th Cir. 2003) (petitioner, who challenged an underlying removal order, could
demonstrate no prejudice, and thus no due process violation, because even if DHS
had granted him additional process during the reinstatement proceedings,
§ 1231(a)(5) nevertheless precluded a collateral attack on the removal order).
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This court’s jurisdiction is instead limited to reviewing the reinstatement order
itself, i.e., whether DHS established Hernandez Gonzalez’s identity, the existence of
a prior removal order, and his unlawful reentry into the United States. See 8 C.F.R.
§ 241.8(a) (reinstatement criteria); Perez-Garcia v. Lynch, 829 F.3d 937, 940 (8th Cir.
2016) (discussing criteria); see also Lara-Nieto, 945 F.3d at 1059 (this court reviews
a reinstatement order for substantial evidence and will not overturn DHS’s factual
findings unless it would not be possible for any reasonable fact-finder to reach the
same conclusion). Hernandez Gonzalez concedes that he unlawfully reentered the
United States at some point, but he contests the existence of a removal order, and he
appears to contest his identity, as he raises purported factual discrepancies and
evidentiary shortcomings in the record.1 We conclude that Hernandez Gonzalez
failed to exhaust these issues because when DHS presented him with the opportunity
to contest the reinstatement order, which stated that he had been previously removed
pursuant to an order of removal, he declined to do so. See Perez-Garcia, 829 F.3d at
941 (substantial evidence supported DHS’s reinstatement decision, including because
petitioner did not submit any rebuttal evidence and chose not to make a statement).
We agree with the government that Hernandez Gonzalez’s belated attempt to
raise some of the discrepancies after DHS entered the reinstatement order was
insufficient to exhaust his claims. As this court recently stated, a petitioner must have
“raise[d] [the] issue to DHS before the agency reinstated his prior removal order.”
See Mendez-Gomez v. Barr, 928 F.3d 728, 732 (8th Cir. 2019) (a petitioner’s failure
to contest reinstatement criterion before DHS deprives this court of jurisdiction for
1To the extent that Hernandez Gonzalez raises new arguments in the reply or
relies on documents outside of the certified administrative record, we will not
consider them. See Ochoa-Carrillo, 437 F.3d at 843 (noting that appellate review of
a reinstatement order is limited to the certified administrative record); see also
Jenkins v. Winter, 540 F.3d 742, 751 (8th Cir. 2008) (this court does not consider
issues raised for first time in reply brief).
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want of exhaustion to review a due process challenge to reinstatement order); see also
Ochoa-Carrillo, 437 F.3d at 848-49 (petitioner suffered no prejudice when she did not
make a statement to DHS, request additional process by DHS, or submit anything in
the nature of an offer of proof to DHS that would demonstrate she would prevail).
The petition for review is denied. See 8th Cir. R. 47B.
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