On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A029-677-022
The opinion of the court was delivered by: Murguia, Circuit Judge:
Argued and Submitted June 7, 2012-Seattle, Washington
Before: Barry G. Silverman and Mary H. Murguia, Circuit Judges, and Leslie E. Kobayashi, District Judge.*fn1
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.
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 departed, and (3) confirm that the alien unlawfully reentered the United States." Lin v. Gonzales, 473 F.3d 979, 983 (9th Cir. 2007). Per 8 C.F.R. § 241.8(b), the officer must then give the alien written notice of his determination that the alien is subject to removal and provide him with an opportunity to make a statement contesting the determination. See id. If these requirements are met, the alien "shall be removed" under the prior removal order. 8 C.F.R. § 241.8(c).
However, § 241.8(e) creates an exception by which an alien who asserts "a fear of returning to the country designated" in his reinstated removal order is "immediately" referred to an asylum officer who must determine if the alien has a reasonable fear of persecution or torture in accordance with 8 C.F.R. § 208.31.*fn2 If the officer decides that the alien does have a reasonable fear of persecution or torture, the case is referred to an immigration judge ("IJ") "for full consideration of the request for withholding of removal only." 8 C.F.R. § 208.31(e).
On the other hand, where the asylum officer decides that the alien has not established a reasonable fear of persecution or torture, the alien may appeal the asylum officer's determination to an IJ. 8 C.F.R. § 208.31(g). If the IJ agrees with the officer's negative fear determination, the case is "returned to the Service for removal." 8 C.F.R. § 208.31(g)(1). The regulations do not provide any means for the alien to appeal the IJ's decision regarding a reasonable fear of persecution to the Board of Immigration Appeals ("BIA"). If, however, the IJ disagrees with the officer's determination and decides that the alien has established a reasonable fear, the alien can file an "Application for Asylum and Withholding of Removal," though the IJ can only consider the alien's application for withholding of removal, not asylum. 8 C.F.R. § 208.31(g)(2). Either party can seek BIA review of the IJ's decision to grant or deny withholding of removal. 8 C.F.R. § 208.31(g)(2)(ii). The regulations provide no means by which an alien with a reinstated removal order may apply for asylum. According to the Government, DHS cannot execute a reinstated removal order until the reasonable fear proceedings are complete.
Ortiz is a Mexican national who first entered the United States in 1989. An IJ ordered Ortiz removed to Mexico on March 1, 2001. That same day, Ortiz was deported and reentered the United States. On September 7, 2010, DHS issued Ortiz a "Notice of Intent/ Decision to ...