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Lara-Nieto v. Barr

United States Court of Appeals, Eighth Circuit

December 27, 2019

Jesus Lara-Nieto Petitioner
v.
William P. Barr, Attorney General of the United States Respondent Jesus Lara-Nieto Plaintiff- Appellant
v.
Chad Wolf, Acting Secretary, Department of Homeland Security; Peter Berg, District Director, U.S. Immigration & Customs Enforcement (ICE); William P. Barr, Attorney General of the United States Defendants - Appellees Jesus Lara-Nieto Plaintiff- Appellant
v.
Chad Wolf, Acting Secretary, Department of Homeland Security; Mario Ortiz, District Director, U.S. Immigration & Customs Enforcement (ICE); Peter Berg, District Director, U.S. Immigration & Customs Enforcement (ICE); William P. Barr, Attorney General of the United States Defendants - Appellees

          Submitted: October 16, 2019

          Appeals from United States District Court for the District of Minnesota

         Petition for Review of an Order of the Board of Immigration Appeals

          Before LOKEN, SHEPHERD, and STRAS, Circuit Judges.

          SHEPHERD, CIRCUIT JUDGE.

         In this 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[3] in the consolidated cases.

         I.

         Jesus 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 removability.

         After 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.

         At some 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.

         Lara-Nieto 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 or torture.

         Lara-Nieto 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.

         II.

         We 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) ...


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