Opinion
No. 04-75226.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed July 8, 2008.
On Petition for Review of an Order of the Bureau of Immigration and Customs Enforcement. Agency No. A97-773-693.
Before: REINHARDT, W. FLETCHER, and CLIFTON, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Oscar Avelar-Olmos, a native and citizen of Mexico, petitions for review of the Bureau of Immigration and Customs Enforcement's decision to reinstate his prior removal order. We have jurisdiction under 8 U.S.C. § 1252. We review de novo claims of due process violations. Ram v. INS, 243 F.3d 510, 516 (9th Cir. 2001). We deny the petition for review.
Avelar-Olmos' challenge to 8 U.S.C. § 1231(a)(5) is foreclosed by MoralesIzquierdo v. Gonzales, 486 F.3d 484, 498 (9th Cir. 2007) (en banc) (concluding that a previously removed alien who reenters the country unlawfully is not entitled to a hearing before an immigration judge on whether to reinstate a prior removal order).
Contrary to Avelar-Olmos' contention, 8 U.S.C. § 1231(a)(5) applies to his expedited removal order. See Morales-Izquierdo, 486 F.3d at 496 n. 14 ("Any mode of departure — voluntary or involuntary — while subject to an order of removal constitutes a removal for reinstatement purposes.").
Moreover, Avelar-Olmos is precluded from applying for adjustment of status. See Padilla v. Ashcroft, 334 F.3d 921, 925 (9th Cir. 2003) ( 8 U.S.C. § 1231(a)(5) bars an alien who has had a removal order reinstated from adjustment of status).
Avelar-Olmos' due process contentions are unavailing because he has not demonstrated prejudice. See Padilla, 334 F.3d at 924-25 (requiring prejudice to prevail on a due process claim).