Bravo-Bravo v. Garland

• Citation: 54 F.4th 634
• 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

54 F.4th 634

Ricardo BRAVO-BRAVO, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 20-71042

United States Court of Appeals, Ninth Circuit.

Submitted February 15, 2022^* Seattle, Washington

FILED December 2, 2022

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.

Order;

Opinion by Judge Ikuta

ORDER

The opinion filed on July 18, 2022, is amended as follows. On slip opinion page 5, footnote 2, add See Cath. Legal Immigr. Network, Inc. v. Exec. Office for Immigr. Rev., No. 21-00094, 2021 WL 3609986 at *1 (D.D.C. Apr. 4, 2021) ; Centro Legal de la Raza v. Exec. Office for Immigr. Rev., 524 F. Supp. 3d 919, 928 (N.D. Cal. 2021). We do not express a view on the current status of the regulation or the impact of the stays. >. On slip opinion page 11, replace with . On slip opinion page 12, delete footnote 7.

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.

I

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, 126 S.Ct. 2422, 165 L.Ed.2d 323 (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) (giving circuit courts jurisdiction to hear "constitutional claims or questions of law"). 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, 63 S.Ct. 454, 87 L.Ed. 626 (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, 89 S.Ct. 1426, 22 L.Ed.2d 709 (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.

II

We now turn to the facts of this case. Bravo-Bravo is a native and citizen of Mexico whose status was adjusted to that of a lawful permanent resident in 1997. After his adjustment of status, Bravo-Bravo was convicted of four separate crimes in Washington state court, including for the offense of criminal delivery of a controlled substance in July 2002, see Wash. Rev. Code § 69.50.401(a)(1). Because at that time the July 2002 conviction qualified as an aggravated felony under immigration law, 8 U.S.C. § 1101(a)(43)(B), Bravo-Bravo was therefore removable under 8 U.S.C. § 1227(a)(2)(A)(iii). At the removal hearing on June 9, 2003, Bravo-Bravo was ordered removed to Mexico, and was subsequently removed.

Some time later, Bravo-Bravo illegally reentered the United States. See Bravo-Bravo v. Barr , 808 F. App'x 593, 594 (9th Cir. 2020). In 2016, the government detained Bravo-Bravo and reinstated his 2003 removal order under § 1231(a)(5). Id. at 593–94.

In January 2017, Bravo-Bravo filed a petition for review of the reinstatement order. Id. at 593. Bravo-Bravo argued that "the reinstatement was improper because his reentry to the United States was not illegal, and that his underlying removal order constituted a gross miscarriage of justice." Id. at 593–94. We rejected both claims, however, in a memorandum disposition filed June 12, 2020. Id. First, we held that Bravo-Bravo's reentry into the United States was illegal, because he deceived the border control agent into thinking he was authorized to enter the country. Id. at 594. Second, we held that his collateral attack on his prior removal order failed. Bravo-Bravo had argued that his prior removal order was unjust because "his state conviction serving as the basis of his removal was expunged by the state court, and because this court subsequently held that a conviction under Wash. Rev. Code § 69.50.401(a)(1) is not an aggravated felony." Id. We rejected this argument, holding that even if the state court had expunged Bravo-Bravo's crime, "that expungement does not speak to the fairness of his underlying removal proceeding." Id. Given that the Washington conviction "was an aggravated felony at the time [Bravo-Bravo] was convicted," we concluded there was no miscarriage of justice. Id.

While Bravo-Bravo's petition for review of the reinstatement order and proceeding was still pending, Bravo-Bravo filed a motion with the IJ to reopen his 2003 removal order and proceedings under 8 U.S.C. § 1229a(c)(7), or in the alternative to exercise the sua sponte authority to reopen the removal order and proceedings under 8 C.F.R. §§ 1003.2(a), 1003.23(b)(1). In asking the IJ to reopen his original removal order and proceedings, Bravo-Bravo reiterated the argument he had raised in his petition for review of the reinstated removal order: that his 2002 conviction had...