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Avila-Macias v. Ashcroft

January 23, 2003

ANTONIO AVILA-MACIAS, PETITIONER
v.
JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, RESPONDENT



ON APPEAL FROM THE UNITED STATES IMMIGRATION & NATURALIZATION SERVICE Agency No. 0090-1 : A39 292 486

Before: Scirica, Barry, and Smith, Circuit Judges

The opinion of the court was delivered by: Maryanne Trump Barry, Circuit Judge.

Released for publication by order dated May 9, 2003.

ANTONIO AVILA-MACIAS, PETITIONER
v.
JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, RESPONDENT

ON APPEAL FROM THE UNITED STATES IMMIGRATION & NATURALIZATION SERVICE Agency No. 0090-1 : A39 292 486

Before: Scirica, Barry, and Smith, Circuit Judges

The opinion of the court was delivered by: Maryanne Trump Barry, Circuit Judge.

PUBLISH

Submitted Under Third Circuit LAR 34.1(a) January 10, 2003

OPINION

On November 29, 2001, the Immigration and Naturalization Service ("INS") issued an order reinstating a prior order of deportation against petitioner Antonio Avila-Macias pursuant to Section 305(a)(5) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). *fn1 Avila-Macias appeals, arguing that (1) Section 305(a)(5) does not apply to him because he was previously deported as opposed to removed; (2) applying Section 305(a)(5) in his case would be impermissibly retroactive because he was deported prior to April 1, 1997, the effective date of IIRIRA; (3) the reinstatement order was invalid because it did not specify where and when he illegally reentered the United States and because his counsel was not notified of its issuance; and (4) the deportation order which underlies the order of reinstatement is vulnerable to collateral attack.

We have jurisdiction pursuant to Section 242(a)(1) of the Immigration and Nationality Act, which is codified at 8 U.S.C. § 1252(a)(1), and will affirm for the reasons we summarize as follows. First, Section 309(d)(2) of IIRIRA provides that "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." There is no reason to limit the applicability of this broadly-worded provision in the ways that Avila-Macias advocates. Second, while Avila-Macias was deported prior to the effective date of IIRIRA, he does not allege that he illegally reentered the United States prior to it. Thus, the consequences of his actions at the time that he illegally reentered are the consequences he faces now. Third, neither the fact that the INS did not specify where or when Avila-Macias reentered nor the fact that his counsel was not notified that reinstatement proceedings had been initiated invalidates the reinstatement order which was issued in this case. Finally, while Avila-Macias may be able to collaterally attack the underlying deportation order elsewhere, we are precluded from reviewing it in a reinstatement proceeding. See 8 U.S.C. § 1231 (a)(5).

I.

Avila-Macias is a native Mexican and citizen of Mexico who entered the United States without inspection in 1979, when he was five years old. He became a lawful permanent resident in 1985. In 1995, he was convicted of "corporal injury to spouse/co-habitant/child's parent" and of vehicle theft, and in 1996, he was convicted of second-degree burglary. Later in 1996, the INS issued an order to show cause charging him with deportability as an alien convicted of an aggravated felony. An immigration judge found that Avila-Macias was deportable as charged and that he was not eligible for relief from deportation, and ordered him deported to ...


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