Submitted: October 16, 2019
Appeals from United States District Court for the District of
for Review of an Order of the Board of Immigration Appeals
LOKEN, SHEPHERD, and STRAS, Circuit Judges.
SHEPHERD, CIRCUIT JUDGE.
consolidated appeal, Jesus Lara-Nieto petitions for review of
an order of the Department of Homeland Security (DHS)
reinstating a prior order of removal and appeals the
dismissal of his related complaints that were filed in
federal district court. Having jurisdiction under 8 U.S.C.
§ 1252(a) and 28 U.S.C. § 1291, we deny his
petition for review in the lead case and affirm the district
court in the consolidated cases.
Lara-Nieto, a citizen of Mexico, unlawfully entered the
United States in 1993. In 2003, he was convicted of
"Assault-Family Violence" in Texas state court.
Lara-Nieto was later served with a Notice of Intent to Issue
a Final Administrative Removal Order (Notice of Intent),
charging him with removability as an alien convicted of an
aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii).
In describing the type of aggravated felony that Lara-Nieto
committed, the Notice of Intent erroneously referred to
§ 101(a)(43)(B) of the Immigration and Nationality Act
(INA), which defines an aggravated felony, in part, as
certain drug-trafficking offenses. See 8 U.S.C.
§ 1101(a)(43)(B). It did, however, refer to
Lara-Nieto's conviction for "Assault-Family
Violence" in the factual allegations supporting
affording Lara-Nieto an opportunity to respond, immigration
authorities issued a Final Administrative Removal Order on
July 1, 2003 (Removal Order). The Removal Order stated that
Lara-Nieto was convicted of an aggravated felony under §
101(a)(43)(F) of the INA, which defines an aggravated felony,
in part, as a crime of violence. See 8 U.S.C. §
1101(a)(43)(F). On July 15, 2003, Lara-Nieto was removed from
the United States.
point thereafter, Lara-Nieto illegally reentered the country.
On April 27, 2018, DHS reinstated the Removal Order pursuant
to 8 U.S.C. § 1231(a)(5). After indicating that he was
afraid to return to Mexico, Lara-Nieto participated in a
reasonable-fear interview via telephone with a DHS asylum
officer on May 8, 2018. During the interview, Lara-Nieto
testified that he feared returning to Mexico because his
hearing impairment would lead to him being persecuted and
make it difficult for him to find work. He also stated that
he believed that he and his family would be in danger if they
returned to Mexico, as individuals who return to Mexico from
the United States are perceived as wealthy and are often
extorted by criminals. The asylum officer, however, found
that Lara-Nieto failed to establish a reasonable fear of
persecution on the basis of a protected ground or that he
would be tortured if removed from the United States.
subsequently appealed the asylum officer's
reasonable-fear determination to an immigration judge (IJ).
The IJ similarly found no reasonable fear of persecution on
the basis of a protected ground or that Lara-Nieto would be
tortured. Although Lara-Nieto also challenged the validity of
the Removal Order, the IJ declined to reach the merits of
that order for jurisdictional reasons. The IJ's denial of
Lara-Nieto's appeal became the final agency decision.
See 8 C.F.R. §§ 208.31(g)(1),
1208.31(g)(1); see also Cardoza Salazar v. Barr, 932
F.3d 704, 706 n.2 (8th Cir. 2019). Neither the asylum's
officer's written findings nor the IJ's order clearly
distinguish between Lara-Nieto's claims for withholding
of removal and claims for protection under the Convention
Against Torture (CAT); rather, they simply find that he
failed to demonstrate a reasonable fear of either persecution
petitioned for review of the order reinstating the Removal
Order in this Court, and while his petition was pending, he
filed two lawsuits in federal district court in which he
sought review of DHS's reinstatement of the Removal Order
and to compel DHS to adjudicate a motion to reopen. He also
moved for temporary restraining orders to prevent his removal
from the United States. The district court, however, denied
his motions and dismissed both lawsuits for lack of
jurisdiction. Lara-Nieto timely appealed the dismissal of his
lawsuits, and those appeals were consolidated with his
petition for review.
first consider whether the district court correctly dismissed
Lara-Nieto's complaints. This Court reviews de novo a
district court's dismissal of a complaint for lack of
subject-matter jurisdiction. See Mohamed v.
Melville, 274 Fed.Appx. 495, 496 (8th Cir. 2008) ...