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Gomez-Chavez v. Perryman

October 24, 2002

RUBEN GOMEZ-CHAVEZ, PLAINTIFF-APPELLANT, PETITIONER-APPELLANT,
v.
BRIAN PERRYMAN, DISTRICT DIRECTOR, DEFENDANT-APPELLEE, AND IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT-APPELLEE.



Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 01-C-5768--Suzanne B. Conlon, Judge. Petition to Review Decision of the Immigration and Naturalization Service. File No. A 75 897-228.

Before Easterbrook, Ripple, and Diane P. Wood, Circuit Judges.

The opinion of the court was delivered by: Diane P. Wood, Circuit Judge.

As amended November 18, 2002.

RUBEN GOMEZ-CHAVEZ, PLAINTIFF-APPELLANT, PETITIONER-APPELLANT,
v.
BRIAN PERRYMAN, DISTRICT DIRECTOR, DEFENDANT-APPELLEE, AND IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT-APPELLEE.

Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 01-C-5768--Suzanne B. Conlon, Judge. Petition to Review Decision of the Immigration and Naturalization Service. File No. A 75 897-228.

Before Easterbrook, Ripple, and Diane P. Wood, Circuit Judges.

The opinion of the court was delivered by: Diane P. Wood, Circuit Judge.

ARGUED JANUARY 24, 2002

Ruben Gomez-Chavez entered the United States illegally some time after he had been summarily removed from the country and ordered not to return for a period of five years. When the INS learned that he was back, it reinstated the earlier order of removal, which then triggered an even more streamlined new removal process. After some procedural confusion, we granted a stay of the new order pending the result of this appeal. We now affirm the decision of the district court.

I.

Gomez-Chavez, a Mexican national, was detained on January 30, 1999, while attempting to enter the United States unlawfully with a fraudulent passport. He was placed in expedited removal proceedings pursuant to 8 U.S.C. § 1225(b)(1) and charged with being inadmissible as a noncitizen. In a proceeding that very day before immigration inspector Ernesto Aguirre, Gomez-Chavez was asked a number of questions to determine his identity, citizenship, and admissibility. (Apparently this took place in English; Gomez-Chavez was assisted by neither an interpreter nor an attorney.) He admitted all pertinent facts, including his identity and the manner in which he had procured the fraudulent passport. Specifically, he confessed that he had purchased a birth certificate and social security card in the name of Carmelo Hernandez for $800. He then used the documents to obtain a passport. On this basis, the INS found him ineligible for admission to the United States and barred him from entering without the Attorney General's consent for a period of five years. The removal was conducted pursuant to § 1225(b)(1), which permits immigration officers to order aliens removed without further hearings or review unless the alien indicates an intention to apply for asylum. Gomez-Chavez was deported on that day, January 30, 1999, without ever receiving a full-blown administrative hearing.

These proceedings did not make much of an impression on him, because less than a month after his removal, Gomez-Chavez reentered the United States. He did so even though he had signed documents warning him that an unauthorized re-entry would put him at risk of a criminal prosecution, and subsequent sentence of two to twenty years in prison and fines up to $250,000. On March 5, 1999, he married Sonia Martinez, a United States citizen. Two months later, Martinez filed a Form I-30 with the INS seeking to classify Gomez-Chavez as an immediate family member. At the same time, Martinez and Gomez-Chavez also filed a form I-485 application to adjust Gomez-Chavez's status to that of an alien lawfully admitted for permanent residence. Despite the existence of the January 30 removal order (about which it seemed to be unaware), on June 1, 1999, the INS issued an Employment Authorization Card to Gomez-Chavez and renewed the card twice, on April 20, 2000, and April 5, 2001.

On July 18, 2001, Gomez-Chavez and Martinez attended an interview conducted by the INS in conjunction with the application for adjustment of status. During the interview, the INS agent realized that Gomez-Chavez had reentered the country illegally. This led to the immediate reinstatement of the January 30 removal order, under the authority of 8 U.S.C. § 1231(a)(5), which reads as follows:

If the Attorney General finds that an alien has reentered the United States illegally after having been removed . . . the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and ...


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