Bravo-Bravo v. Garland
| Decision Date | 02 December 2022 |
| Docket Number | 20-71042 |
| Parties | RICARDO BRAVO-BRAVO, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Submitted February 15, 2022 [*] Seattle, Washington
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A075-265-535
Sylvia L. Esparaza, Law Office of Sylvia L. Esparaza, Las Vegas Nevada; Kristin A. Macleod-Ball and Trina A. Realmuto National Immigration Litigation Alliance, Brookline Massachusetts; for Petitioner.
Edward C. Durant, Attorney; Claire L. Workman, Senior Litigation Counsel; John W. Blakeley, Assistant Director; Brian M. Boynton, Acting Assistant Attorney General; United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C.; for Respondent.
Before: Richard R. Clifton and Sandra S. Ikuta, Circuit Judges, and Karen K. Caldwell, [**] District Judge.
Immigration
ORDER AND AMENDED OPINIONThe panel filed: 1) an order amending the opinion filed July 18, 2022; and 2) an amended opinion denying Ricardo Bravo-Bravo's petition for review of a decision of the Board of Immigration Appeals.
In the amended opinion, the panel held that: 1) 8 U.S.C. § 1231(a)(5), which generally bars reopening reinstated orders of removal, is not subject to an exception for removal orders that result in a gross miscarriage of justice; and 2) the agency lacks authority to reopen such reinstated removal orders sua sponte.
Relying on Cuenca v. Barr, 956 F.3d 1079 (9th Cir. 2020), the BIA concluded that the IJ lacked jurisdiction to reopen Bravo-Bravo's removal order because the order had been reinstated under § 1231(a)(5). The panel explained that an alien may generally not reopen the reinstated prior removal order or proceeding, because the BIA must deny a motion to reopen for lack of jurisdiction under § 1231(a)(5), and this court will deny a petition to review that denial.
Bravo-Bravo argued that the IJ had jurisdiction over his motion because an alien may collaterally challenge a removal order when it results in a gross miscarriage of justice. The panel concluded that this argument was not cognizable in the context of this current appeal, explaining that an alien may raise such a collateral attack, but only in a petition for review of a reinstatement proceeding or order. By contrast, as explained in Cuenca, Bravo-Bravo's motion to reopen was barred by § 1231(a)(5) such that neither the IJ nor the BIA had jurisdiction over his collateral challenge.
Second, Bravo-Bravo argued that, because the IJ had authority under the then-applicable regulation to "reopen or reconsider any case in which he or she has made a decision," at any time, 8 C.F.R. § 1003.23(b)(1) (2020), the IJ retained such authority notwithstanding § 1231(a)(5). The panel disagreed, explaining that Cuenca read § 1231(a)(5) to unambiguously bar reopening a reinstated removal order and to divest the BIA of jurisdiction to reopen a removal proceeding after reinstatement. The panel further explained that, although the then-applicable regulation gave the agency the authority to reopen cases sua sponte, that regulation did not expressly provide that such authority overrode § 1231(a)(5). Nor could it, the panel observed, given that a regulation does not trump an otherwise applicable statute unless the regulation's enabling statute so provides.
The
opinion filed on July 18, 2022, is amended as follows. On
slip opinion page 5, footnote 2, add
The respondent's motion to amend (Dkt. 51) is hereby granted in part and denied in part.
The time to file a petition for rehearing or petition for rehearing en banc is not extended by this amendment. The petition for rehearing or petition for rehearing en banc is due on or before December 6, 2022.
Under the Immigration and Nationality Act, if 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." 8 U.S.C. § 1231(a)(5). In this case, an alien subject to such a reinstated removal order claims there is an exception to § 1231(a)(5) for removal orders that result in a gross miscarriage of justice or alternatively, that the immigration agency has authority to reopen such removal orders sua sponte. Because neither of these exceptions overrides the unambiguous bar on reopening in § 1231(a)(5), we deny the alien's petition for review.
Ricardo Bravo-Bravo seeks review of an opinion by the Board of Immigration Appeals (BIA), which upheld a decision by the immigration judge (IJ) denying his motion to reopen his prior removal proceedings. Before addressing the merits of Bravo-Bravo's appeal, we provide background regarding the applicable legal framework.
After an alien has been ordered removed from the United States, the alien generally may file only one motion to reopen proceedings, and must do so within 90 days of the date the final order of removal was entered. 8 U.S.C. § 1229a(c)(7).[1] An alien may also ask the IJ or BIA to reopen proceedings sua sponte. 8 C.F.R. §§ 1003.2(a), 1003.23(b)(1).[2]
If the alien "takes matters into his own hands and unlawfully reenters the United States" after being removed, Cuenca v. Barr, 956 F.3d 1079, 1082 (9th Cir. 2020), an immigration officer may reinstate the prior removal order. 8 U.S.C. § 1231(a)(5).[3] In such a case, "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 the alien shall be removed under the prior order at any time after the reentry." Id.
Section 1231(a)(5) "explicitly insulates the [underlying] removal orders from review, and generally forecloses discretionary relief from the terms of the reinstated order." Fernandez-Vargas v. Gonzales, 548 U.S. 30, 35 (2006). Despite this bar, we have jurisdiction to review certain challenges to the reinstatement proceedings and orders under 8 U.S.C. § 1252(a)(2)(D) (). First, we may review an alien's claims that the agency failed to comply with applicable reinstatement regulations in conducting the reinstatement proceeding. See Garcia de Rincon v. Dep't of Homeland Security, 539 F.3d 1133, 1137 (9th Cir. 2008). Second, we may review an alien's "collateral attack on the underlying removal order . . . if the [alien] can show that he has suffered a gross miscarriage of justice" in the initial removal proceedings. Cuenca, 956 F.3d at 1087) (quoting Garcia de Rincon, 539 F.3d at 1138) (internal quotation marks omitted).
While we have jurisdiction to review the reinstatement order and proceedings under the circumstances described above, an alien is barred by § 1231(a)(5) from bringing a motion to reopen a reinstated removal order under § 1229a(c)(7). Id.[4] This "bar is a consequence of having reentered unlawfully," which makes the alien subject to a "less favorable legal regime," including "forfeiture of the right to reopen under § 1229a(c)(7)." Id. at 1082, 1087. Such forfeiture "is the clear import of the statute's unambiguous text." Gutierrez-Zavala v. Garland, 32 F.4th 806, 809 (9th Cir. 2022) (citing Cuenca, 956 F.3d at 1084). Accordingly, the BIA is required to deny such a motion to reopen for lack of jurisdiction. Id. at 810. Although we have jurisdiction to review the denial of a motion to reopen a reinstated removal order for legal or constitutional error, see Nath v. Gonzales, 467 F.3d 1185, 1188 (9th Cir. 2006) (citing 8 U.S.C. § 1252(a)(2)(D)), our review is generally limited to ascertaining that the BIA was required to deny such a motion for lack of jurisdiction, see Gutierrez-Zavala, 32 F.4th at 810-11. Even if the BIA denied the motion to reopen on non-jurisdictional grounds, we do not remand the petition to the agency (notwithstanding "the "venerable Chenery doctrine" that our review is typically limited to the reasons given by the agency). Id. at 810 (citing SEC v. Chenery Corp., 318 U.S. 80, 87 (1943)). This is because the BIA's denial of a motion to reopen a reinstated removal order is "[t]he necessary and certain result of § 1231(a)(5)'s bar and our decision in Cuenca," and we need not engage in the "idle and useless formality" of remand. Id. (quoting NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766 n.6 (1969) (plurality opinion)).
In summary, an alien may file a timely petition for review of a reinstated removal order on several grounds.[5] First, the alien may challenge errors or defects in the reinstatement proceeding or reinstatement order. Second, the alien may collaterally attack the removal order underlying the reinstatement order, provided that the alien can claim there was a gross miscarriage of justice in the proceedings resulting in the underlying removal order. But the alien may generally not reopen the reinstated prior removal order or proceeding, because the BIA must deny a motion to reopen for lack of jurisdiction under § 1231(a)(5), and we will deny a petition to review that denial. Gutierrez-Zavala, 32 F.4th at 810.
We now turn to the facts of this case. Bravo-Bravo is a native and citizen of Mexico whose status was adjusted to that...
To continue reading
Request your trial