Julio Montes Ramirez v. JEFFERSON B. SESSIONS III, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JULIO MONTES RAMIREZ,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
No. 15-72620
Agency No. A072-228-513
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 15, 2017**
Before: CANBY, TROTT, and GRABER, Circuit Judges.
Julio Montes Ramirez, a native and citizen of Mexico, petitions for review
of the Department of Homeland Security’s (“DHS”) order reinstating his 2001
order of removal, and an immigration judge’s (“IJ”) determination that he did not
have a reasonable fear of persecution or torture. Our jurisdiction is governed by 8
U.S.C. § 1252. Our review of DHS’ reinstatement order is “limited to confirming
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
NOV 21 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2 15-72620
the agency’s compliance with the reinstatement regulations,” and we review de
novo due process claims and questions of law. Garcia de Rincon v. DHS, 539 F.3d
1133, 1136-37 (9th Cir. 2008). We deny in part and dismiss in part the petition for
review.
Montes Ramirez has waived review of the IJ’s determination under 8 C.F.R.
§ 1208.31(a) that he did not have a reasonable fear of persecution or torture and
thus is not entitled to relief from his reinstated removal order. See Rizk v. Holder,
629 F.3d 1083, 1091 n.3 (9th Cir. 2011) (issues not raised in an opening brief are
waived).
The DHS did not err in issuing Montes Ramirez’s reinstatement order,
where the record shows, and Montes Ramirez does not contest, that he is an alien,
he was subject to a prior order of removal in 2001, and he illegally reentered the
United States subsequent to that order. See Garcia de Rincon, 539 F.3d at 1137
(listing the three determinations underlying a reinstatement order that may be
reviewed); 8 U.S.C. § 1231(a)(5) (if the DHS “finds that an alien has reentered the
United States illegally after having been removed or having departed voluntarily,
under an order of removal, the prior order of removal is reinstated from its original
date”).

-- 2 of 3 --

3 15-72620
We lack jurisdiction to review Montes Ramirez’s collateral challenges to the
underlying 2001 removal order because this petition for review is not timely as to
that decision, see 8 U.S.C. § 1252(b)(1), and Montes Ramirez has not established a
gross miscarriage of justice so as to permit review, see Garcia de Rincon, 539 F.3d
at 1138 (while a petitioner is generally prevented from collaterally attacking an
underlying removal order on constitutional due process grounds, § 1252(a)(2)(D)
permits some measure of review if the petitioner can demonstrate a “gross
miscarriage of justice” in the prior proceedings).
PETITION FOR REVIEW DENIED in part, DISMISSED in part.

-- 3 of 3 --